Title I Technical Assistance Manual

VI. MEDICAL EXAMINATIONS AND INQUIRIES

6.1 Overview of Legal Obligations

Pre-Employment, Pre-Offer

• An employer may not require a job applicant to take a medical examination, to respond to medical inquiries or to provide information about workers' compensation claims before the employer makes a job offer.

Pre-Employment, Post-Offer

• An employer may condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if this is required of all entering employees in the same job category. A post-offer examination or inquiry does not have to be "job-related" and "consistent with business necessity." Questions also may be asked about previous injuries and workers' compensation claims.

• If an individual is not hired because a post-offer medical examination or inquiry reveals a disability, the reason(s) for not hiring must be job-related and necessary for the business. The employer also must show that no reasonable accommodation was available that would enable this individual to perform the essential job functions, or that accommodation would impose an undue hardship.

• A post-offer medical examination may disqualify an individual who would pose a "direct threat" to health or safety. Such a disqualification is job-related and consistent with business necessity.

• A post-offer medical examination may not disqualify an individual with a disability who is currently able to perform essential job functions because of speculation that the disability may cause a risk of future injury.

Employee Medical Examinations and Inquiries

• After a person starts work, a medical examination or inquiry of an employee must be job related and necessary for the business.

• Employers may conduct employee medical examinations where there is evidence of a job performance or safety problem, examinations required by other Federal laws, examinations to determine current "fitness" to perform a particular job and voluntary examinations that are part of employee health programs.

Confidentiality

Information from all medical examinations and inquiries must be kept apart from general personnel files as a separate, confidential medical record, available only under limited conditions specified in the ADA. (See 6.5 below.)

Drug Testing

• Tests for illegal use of drugs are not medical examinations under the ADA and are not subject to the restrictions on such examinations. (See Chapter VIII.)

6.2 Basic Requirements

The ADA does not prevent employers from obtaining medical and related information necessary to evaluate the ability of applicants and employees to perform essential job functions, or to promote health and safety on the job. However, to protect individuals with disabilities from actions based on such information that are not job-related and consistent with business necessity, including protection of health and safety, the ADA imposes specific and differing obligations on the employer at three stages of the employment process:

1. Before making a job offer, an employer may not make any medical inquiry or conduct any medical examination.

2. After making a conditional job offer, before a person starts work, an employer may make unrestricted medical inquiries, but may not refuse to hire an individual with a disability based on results of such inquiries, unless the reason for rejection is job-related and justified by business necessity.

3. After employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity. Exceptions are voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.

Under the ADA, "medical" documentation concerning the qualifications of an individual with a disability, or whether this individual constitutes a "direct threat" to health and safety, does not mean only information from medical doctors. It may be necessary to obtain information from other sources, such as rehabilitation experts, occupational or physical therapists, psychologists, and others knowledgeable about the individual and the disability concerned. It also may be more relevant to look at the individual's previous work history in making such determinations than to rely on an examination or tests by a physician.

The basic requirements regarding actions based on medical information and inquiries have been set out in Chapter IV. As emphasized there, such actions taken because of a disability must be job-related and consistent with business necessity. When an individual is rejected as a "direct threat" to health and safety:

• the employer must be prepared to show a significant current risk of substantial harm (not a speculative or remote risk);

• the specific risk must be identified;

• the risk must be documented by objective medical or other factual evidence regarding the particular individual;

• even if a genuine significant risk of substantial harm exists, the employer must consider whether it can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.

This chapter discusses in more detail the content and manner of medical examinations and inquiries that may be made, and the documentation that may be required (1) before employment and (2) after employment.

6.3 Examinations and Inquiries Before Employment

No Pre-Offer Medical Examination or Inquiry

The ADA prohibits medical inquiries or medical examinations before making a conditional job offer to an applicant. This prohibition is necessary because the results of such inquiries and examinations frequently are used to exclude people with disabilities from jobs they are able to perform.

Some employers have medical policies or rely on doctors' medical assessments that overestimate the impact of a particular condition on a particular individual, and/or underestimate the ability of an individual to cope with his or her condition. Medical policies that focus on disability, rather than the ability of a particular person, frequently will be discriminatory under the ADA.

For example: A policy that prohibits employment of any individual who has epilepsy, diabetes or a heart condition from a certain type of job, and which does not consider the ability of a particular individual, in most cases would violate the ADA. (See Chapter IV.)

Many employers currently use a pre-employment medical questionnaire, a medical history, or a pre-employment medical examination as one step in a several-step selection process. Where this is so, an individual who has a "hidden" disability such as diabetes, epilepsy, heart disease, cancer, or mental illness, and who is rejected for a job, frequently does not know whether the reason for rejection was information revealed by the medical exam or inquiry (which may not have any relation to this person's ability to do the job), or whether the rejection was based on some other aspect of the selection process.

A history of such rejections has discouraged many people with disabilities from applying for jobs, because of fear that they will automatically be rejected when their disability is revealed by a medical examination. The ADA is designed to remove this barrier to employment.

6.4 Post-Offer Examinations and Inquiries Permitted

The ADA recognizes that employers may need to conduct medical examinations to determine if an applicant can perform certain jobs effectively and safely. The ADA requires only that such examinations be conducted as a separate, second step of the selection process, after an individual has met all other job pre-requisites. The employer may make a job offer to such an individual, conditioned on the satisfactory outcome of a medical examination or inquiry, providing that the employer requires such examination or inquiry for all entering employees in a particular job category, not merely individuals with known disabilities, or those whom the employer believes may have a disability.

A post-offer medical examination does not have to be given to all entering employees in all jobs, only to those in the same job category.

For example: An examination might be given to all entering employees in physical labor jobs, but not to employees entering clerical jobs.

The ADA does not require an employer to justify its requirement of a post-offer medical examination. An employer may wish to conduct a post-offer medical exam or make post-offer medical inquiries for purposes such as:

To determine if an individual currently has the physical or mental qualifications necessary to perform certain jobs:

For example: If a job requires continuous heavy physical exertion, a medical examination may be useful to determine whether an applicant's physical condition will permit him/her to perform the job.

To determine that a person can perform a job without posing a "direct threat" to the health or safety of self or others.

For example:

• A medical examination and evaluation might be required to ensure that prospective construction crane operators do not have disabilities such as uncontrolled seizures that would pose a significant risk to other workers.

• Workers in certain health care jobs may need to be examined to assure that they do not have a current contagious disease or infection that would pose a significant risk of transmission to others, and that could not be accommodated (for example, by giving the individual a delayed starting date until the period of contagion is over).

Compliance with medical requirements of other Federal laws

Employers may comply with medical and safety requirements established under other Federal laws without violating the ADA.

For example: Federal Highway Administration regulations require medical examinations and evaluations of interstate truck drivers, and the Federal Aviation Administration requires examinations for pilots and air controllers.

However, an employer still has an obligation to consider whether there is a reasonable accommodation, consistent with the requirements of other Federal laws, that would not exclude individuals who can perform jobs safely.

Employers also may conduct post-offer medical examinations that are required by state laws, but, as explained in Chapter IV, may not take actions based on such examinations if the state law is inconsistent with ADA requirements. (See Health and Safety Requirements of Other Federal or State Laws, 4.6.)

Information That May Be Requested in Post-Offer Examinations or Inquiries

After making a conditional job offer, an employer may make inquiries or conduct examinations to get any information that it believes to be relevant to a person's ability to perform a job. For example, the employer may require a full physical examination. An employer may ask questions that are prohibited as pre-employment inquiries about previous illnesses, diseases or medications. (See Chapter V.)

If a post-offer medical examination is given, it must be administered to all persons entering a job category. If a response to an initial medical inquiry (such as a medical history questionnaire) reveals that an applicant has had a previous injury, illness, or medical condition, the employer cannot require the applicant to undergo a medical examination unless all applicants in the job category are required to have such examination. However, the ADA does not require that the scope of medical examinations must be identical. An employer may give follow-up tests or examinations where an examination indicates that further information is needed.

For example: All potential employees in a job category must be given a blood test, but if a person's initial test indicates a problem that may affect job performance, further tests may be given to that person only, in order to get necessary information.

A post-offer medical examination or inquiry, made before an individual starts work, need not focus on ability to perform job functions. Such inquiries and examinations themselves, unlike examinations/inquiries of employees, do not have to be "job related" and "consistent with business necessity." However, if a conditional job offer is withdrawn because of the results of such examination or inquiry, an employer must be able to show that:

• the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that

• no reasonable accommodation was available that would enable this person to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship.

Some examples of post-offer decisions that might be job-related and justified by business necessity, and/or where no reasonable accommodation was possible:

• a medical history reveals that the individual has suffered serious multiple re-injuries to his back doing similar work, which have progressively worsened the back condition. Employing this person in this job would incur significant risk that he would further re-injure himself.

• a workers' compensation history indicates multiple claims in recent years which have been denied. An employer might have a legitimate business reason to believe that the person has submitted fraudulent claims. Withdrawing a job offer for this reason would not violate the ADA, because the decision is not based on disability.

• a medical examination reveals an impairment that would require the individual's frequent lengthy absence from work for medical treatment, and the job requires daily availability for the next 3 months. In this situation, the individual is not available to perform the essential functions of the job, and no accommodation is possible.

Examples of discriminatory use of examination results that are not job related and justified by business necessity:

• A landscape firm sent an applicant for a laborer's job (who had been doing this kind of work for 20 years) for a physical exam. An x-ray showed that he had a curvature of the spine. The doctor advised the firm not to hire him because there was a risk that he might injure his back at some time in the future. The doctor provided no specific medical documentation that this would happen or was likely to happen. The company provided no description of the job to the doctor. The job actually involved riding a mechanical mower. This unlawful exclusion was based on speculation about future risk of injury, and was not job-related.

• An individual is rejected from a job because he cannot lift more than 50 pounds. The job requires lifting such a weight only occasionally. The employer has not considered possible accommodations, such as sharing the occasional heavy weight lifting with another employee or providing a device to assist lifting.

Risk Cannot be Speculative or Remote

The results of a medical examination may not disqualify persons currently able to perform essential job functions because of unsubstantiated speculation about future risk.

The results of a medical inquiry or examination may not be used to disqualify persons who are currently able to perform the essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers' compensation or insurance costs. An employer may use such information to exclude an individual with a disability where there is specific medical documentation, reflecting current medical knowledge, that this individual would pose a significant, current risk of substantial harm to health or safety. (See Standards for Health and Safety: "Direct Threat" Chapter IV.)

For example:

• An individual who has an abnormal back X-ray may not be disqualified from a job that requires heavy lifting because of fear that she will be more likely to injure her back or cause higher workers' compensation or health insurance costs. However, where there is documentation that this individual has injured and re-injured her back in similar jobs, and the back condition has been aggravated further by injury, and if there is no reasonable accommodation that would eliminate the risk of reinjury or reduce it to an acceptable level, an employer would be justified in rejecting her for this position.

• If a medical examination reveals that an individual has epilepsy and is seizure-free or has adequate warning of a seizure, it would be unlawful to disqualify this person from a job operating a machine because of fear or speculation that he might pose a risk to himself or others. But if the examination and other medical inquiries reveal that an individual with epilepsy has seizures resulting in loss of consciousness, there could be evidence of significant risk in employing this person as a machine operator. However, even where the person might endanger himself by operating a machine, an accommodation, such as placing a shield over the machine to protect him, should be considered.

The Doctor's Role

A doctor who conducts medical examinations for an employer should not be responsible for making employment decisions or deciding whether or not it is possible to make a reasonable accommodation for a person with a disability. That responsibility lies with the employer.

The doctor's role should be limited to advising the employer about an individual's functional abilities and limitations in relation to job functions, and about whether the individual meets the employer's health and safety requirements.

Accordingly, employers should provide doctors who conduct such examinations with specific information about the job, including the type of information indicated in the discussions of "job descriptions" and "job analysis" in Chapter II. (See 2.3.)

Often, particularly when an employer uses an outside doctor who is not familiar with actual demands of the job, a doctor may make incorrect assumptions about the nature of the job functions and specific tasks, or about the ability of an individual with a disability to perform these tasks with a reasonable accommodation. It may be useful for the doctor to visit the job site to see how the job is done.

The employer should inform the doctor that any recommendations or conclusions related to hiring or placement of an individual should focus on only two concerns:

1. Whether this person currently is able to perform this specific job, with or without an accommodation.

This evaluation should look at the individual's specific abilities and limitations in regard to specific job demands.

For example: The evaluation may indicate that a person can lift up to 30 pounds and can reach only 2 feet above the shoulder; the job as usually performed (without accommodation) requires lifting 50 pound crates to shelves that are 6 feet high.

2. Whether this person can perform this job without posing a "direct threat" to the health or safety of the person or others.

The doctor should be informed that the employer must be able to show that an exclusion of an individual with a disability because of a risk to health or safety meets the "direct threat" standard of the ADA, based on "the most current medical knowledge and/or the best available objective evidence about this individual." (See Chapter IV., Standards Necessary for Health and Safety, and 6.2 above.)

For example: If a post-offer medical questionnaire indicates that a person has a history of repetitive motion injuries but has had successful surgery with no further problems indicated, and a doctor recommends that the employer reject this candidate because this medical history indicates that she would pose a higher risk of future injury, the employer would violate the ADA if it acted on the doctor's recommendation based only on the history of injuries. In this case, the doctor would not have considered this person's actual current condition as a result of surgery.

A doctor's evaluation of any future risk must be supported by valid medical analyses indicating a high probability of substantial harm if this individual performed the particular functions of the particular job in question. Conclusions of general medical studies about work restrictions for people with certain disabilities will not be sufficient evidence, because they do not relate to a particular individual and do not consider reasonable accommodation.

The employer should not rely only on a doctor's opinion, but on the best available objective evidence. This may include the experience of the individual with a disability in previous similar jobs, occupations, or non-work activities, the opinions of other doctors with expertise on the particular disability, and the advice of rehabilitation counselors, occupational or physical therapists, and others with direct knowledge of the disability and/or the individual concerned. Organizations such as Independent Living Centers, public and private rehabilitation agencies, and organizations serving people with specific disabilities such as the Epilepsy Foundation, United Cerebral Palsy Associations, National Head Injury Foundation, and many others can provide such assistance. (See Resource Directory.)

Where the doctor's report indicates that an individual has a disability that may prevent performance of essential job functions, or that may pose a "direct threat" to health or safety, the employer also may seek his/her advice on possible accommodations that would overcome these disqualifications.

6.5 Confidentiality and Limitations on Use of Medical Information

Although the ADA does not limit the nature or extent of post-offer medical examinations and inquiries, it imposes very strict limitations on the use of information obtained from such examinations and inquiries. These limitations also apply to information obtained from examinations or inquiries of employees.

All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files and must be treated as a confidential medical record. Therefore, an employer should not place any medical-related material in an employee's personnel file. The employer should take steps to guarantee the security of the employee's medical information, including:

• keeping the information in a medical file in a separate, locked cabinet, apart from the location of personnel files; and

• designating a specific person or persons to have access to the medical file.

All medical-related information must be kept confidential, with the following exceptions:

• Supervisors and managers may be informed about necessary restrictions on the work or duties of an employee and necessary accommodations.

• First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations.

• Government officials investigating compliance with the ADA and other Federal and state laws prohibiting discrimination on the basis of disability or handicap should be provided relevant information on request. (Other Federal laws and regulations also may require disclosure of relevant medical information.)

• Relevant information may be provided to state workers' compensation offices or "second injury" funds, in accordance with state workers' compensation laws. (See Chapter IX., Workers' Compensation and Work-Related Injury.)

• Relevant information may be provided to insurance companies where the company requires a medical examination to provide health or life insurance for employees. (See Health Insurance and Other Benefit Plans, Chapter VII.)

6.6 Employee Medical Examinations and Inquiries

The ADA's requirements concerning medical examinations and inquiries of employees are more stringent than those affecting applicants who are being evaluated for employment after a conditional job offer. In order for a medical examination or inquiry to be made of an employee, it must be job related and consistent with business necessity. The need for the examination may be triggered by some evidence of problems related to job performance or safety, or an examination may be necessary to determine whether individuals in physically demanding jobs continue to be fit for duty. In either case, the scope of the examination also must be job-related.

For example:

• An attorney could not be required to submit to a medical examination or inquiry just because her leg had been amputated. The essential functions of an attorney's job do not require use of both legs; therefore such an inquiry would not be job related.

• An employer may require a warehouse laborer, whose back impairment affects the ability to lift, to be examined by an orthopedist, but may not require this employee to submit to an HIV test where the test is not related to either the essential functions of his job or to his impairment.

Medical examinations or inquiries may be job related and necessary under several circumstances:

When an employee is having difficulty performing his or her job effectively.

In such cases, a medical examination may be necessary to determine if s/he can perform essential job functions with or without an accommodation.

For example: If an employee falls asleep on the job, has excessive absenteeism, or exhibits other performance problems, an examination may be needed to determine if the problem is caused by an underlying medical condition, and whether medical treatment is needed. If the examination reveals an impairment that is a disability under the ADA, the employer must consider possible reasonable accommodations. If the impairment is not a disability, the employer is not required to make an accommodation.

For example: An employee may complain of headaches caused by noise at the worksite. A medical examination may indicate that there is no medically discernible mental or physiological disorder causing the headaches. This employee would not be "an individual with a disability" under the ADA, and the employer would have no obligation to provide an accommodation. The employer may voluntarily take steps to improve the noise situation, particularly if other employees also suffer from noise, but would have no obligation to do so under the ADA.

When An Employee Becomes Disabled

An employee who is injured on or off the job, who becomes ill, or suffers any other condition that meets the ADA definition of "disability," is protected by the Act if s/he can perform the essential functions of the job with or without reasonable accommodation.

Employers are accustomed to dealing with injured workers through the workers' compensation process and disability management programs, but they have different, although not necessarily conflicting obligations under the ADA. The relationship between ADA, workers' compensation requirements and medical examinations and inquiries is discussed in Chapter IX.

Under the ADA, medical information or medical examinations may be required when an employee suffers an injury on the job. Such an examination or inquiry also may be required when an employee wishes to return to work after an injury or illness, if it is job-related and consistent with business necessity:

• to determine if the individual meets the ADA definition of "individual with a disability," if an accommodation has been requested.

• to determine if the person can perform essential functions of the job currently held, (or held before the injury or illness), with or without reasonable accommodation, and without posing a "direct threat" to health or safety that cannot be reduced or eliminated by reasonable accommodation.

• to identify an effective accommodation that would enable the person to perform essential job functions in the current (previous) job, or in a vacant job for which the person is qualified (with or without accommodation). (See Chapter IX.)

Examination Necessary for Reasonable Accommodation

A medical examination may be required if an employee requests an accommodation on the basis of disability. An accommodation may be needed in an employee's existing job, or if the employee is being transferred or promoted to a different job. Medical information may be needed to determine if the employee has a disability covered by the ADA and is entitled to an accommodation, and if so, to help identify an effective accommodation.

Medical inquiries related to an employee's disability and functional limitations may include consultations with knowledgeable professional sources, such as occupational and physical therapists, rehabilitation specialists, and organizations with expertise in adaptations for specific disabilities.

Medical examinations, screening and monitoring required by other laws.

Employers may conduct periodic examinations and other medical screening and monitoring required by federal, state or local laws. As indicated in Chapter IV, the ADA recognizes that an action taken to comply with another Federal law is job-related and consistent with business necessity; however, requirements of state and local laws do not necessarily meet this standard unless they are consistent with the ADA.

For example: Employers may conduct medical examinations and medical monitoring required by:

• The U.S. Department of Transportation for interstate bus and truck drivers, railroad engineers, airline pilots and air controllers;

• The Occupational Safety and Health Act:

• The Federal Mine Health and Safety Act;

• Other statutes that require employees exposed to toxic or hazardous substances to be medically monitored at specific intervals.

However, if a state or local law required that employees in a particular job be periodically tested for AIDS or the HIV virus, the ADA would prohibit such an examination unless an employer can show that it is job-related and consistent with business necessity, or required to avoid a direct threat to health or safety. (See Chapter IV.)

Voluntary "Wellness" and Health Screening Programs

An employer may conduct voluntary medical examinations and inquiries as part of an employee health program (such as medical screening for high blood pressure, weight control, and cancer detection), providing that:

• participation in the program is voluntary;

• information obtained is maintained according to the confidentiality requirements of the ADA (See 6.5); and

• this information is not used to discriminate against an employee.

Information from Medical Inquiries May Not be Used to Discriminate

An employer may not use information obtained from an employee medical examination or inquiry to discriminate against the employee in any employment practice. (See Chapter VII.)

Confidentiality

All information obtained from employee medical examinations and inquiries must be maintained and used in accordance with ADA confidentiality requirements. (See 6.5 above.)