WORKPLACE LAW - Confused About the Law

Question:

I am wondering about medical questionnaires and exams for employees. It was my understanding that an employer can ask an employee medically-related questions, and require medical examinations. However, a friend of mine is sure that this type of screening is illegal. Which one of us is right?

Answer:

As it turns out, you and your friend are both right. Disability-related inquiries and medical examinations of prospective and current employees may be permissible, as long as certain guidelines and rules are followed. However, disability discrimination laws limit an employer’s ability to require medical exams, or to make disability-related inquiries of applicants and employees. An employer’s ability to gather such information varies depending on when the information is obtained: pre-job offer; post-job offer; or during the course of employment.

Prior to an offer of employment, the California Fair Employment and Housing Act (FEHA) generally prohibits all disability-related inquiries and medical examinations, even if they are related to the individual’s performance of the job that he/she is applying for. Therefore, at the pre-job offer stage, an employer may not do any of the following:

  • Require any medical or psychological examination;
  • Make any medical or physiological inquiry of an applicant;
  • Make any inquiry as to whether an applicant has a mental disability, physical disability, or medical condition; or
  • Make any inquiry regarding the nature or severity of a mental disability, physical disability, or medical condition.

However, while an employer is prevented from doing all of the above, it may inquire generally as to a job applicant’s overall ability to perform the job in question.

Both California and federal law require employers to postpone employee medical examinations until after a job offer has actually been made, and the applicant has satisfied all other pre-employment conditions. Following the extension of a job offer to an applicant, an employer is at liberty to obtain more detailed medical information about their prospective employee. Therefore, after a job offer has been made, but before a new employee starts work, an employer may make certain disability-related inquiries, and may require medical and/or psychological examinations. The employer must be sure, however, that any inquiry or required medical examination is job-related and consistent with business necessity, and that all entering employees in the same job category or classification are subject to the same examination or inquiry.

A disability-related inquiry or medical examination may be deemed to be “job-related” and “consistent with business necessity” in any of the following situations:

  • The inquiry or examination is a follow-up to an employee’s request for reasonable accommodation when the employee’s disability is not obvious;
  • The employer has a reasonable belief that a medical condition will impair an employee’s ability to perform essential job functions;
  • The employer has a reasonable belief that an employee will pose a direct threat to him/herself or others, due to a medical condition;
  • A credible third party has given the employer reliable information that an employee has a medical condition;
  • The employer knows about a particular employee’s medical condition, has observed performance problems, and can reasonably attribute those problems to the condition; or
  • The employer observes symptoms indicating that the employee has a medical condition that impairs his/her ability to perform essential job functions, or that poses a direct threat to him/herself or others in the workplace.
During the course of an individual’s employment, an employer may also make inquiries or require medical exams if it can show that doing so is job-related and consistent with business necessity. Existing employees who apply for a different job or a promotion should be treated like new job applicants for purposes of disability discrimination laws. This means that employers cannot ask disability-related questions or require medical examinations of the existing employee until they have made the individual a conditional offer of employment in the new position.
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