Whether or not an employer can request an employee to submit to medical testing depends on:
Under the Americans with Disabilities Act (ADA), employers are prohibited from requiring medical exams before a job offer has been made. The ADA borrows the Equal Employment Opportunity Commission’s (EEOC) definition of medical exams as “procedures or tests that seek information about the existence, nature or severity of an individual’s physical or mental impairment, or that seek information regarding an individual’s physical or psychological health.”
Types of exams that do not meet the definition of a medical exam and that are permitted prior to a job offer include:
Certain psychological exams also may be permissible, so long as they are used to determine a job applicant’s honesty or habits (these tests are sometimes referred to as personality or honesty tests). However, if the psychological exam is used to find out information about the existence of mental disorders or impairments of a particular job applicant, the exam is considered a medical exam and may not be required at the pre-offer stage. Additionally, the exam cannot ask questions about past and current illegal drug use, current or past use of mental health services or alcohol use.
Many employers require job applicants to submit to drug tests to determine whether they are currently using illegal substances. The ADA does not define these tests as medical exams. However, these tests also may find evidence of an applicant’s current legal drug use as well, specifically to treat a mental or physical disability. Employers are not allowed under the ADA to inquire about an applicant’s legal drug use in the pre-offer stage of employment. An employer who makes a decision not to extend a job offer to an applicant based on legal drug use for a disability may be subject to an ADA claim.
Once an employer has extended a job offer to an applicant, then the employer can request medical exams for one of three purposes:
Additionally, employers are only permitted to require medical testing for one of these purposes if:
If an employer makes a negative employment decision based on the results of a medical exam, the employer’s decision must be job-related, based on a business need and there cannot be a reasonable accommodation that would allow the applicant to complete the job duties.
Employers are delving more into the personal lives of job applicants and employees to determine whether or not they are fit for a specific job. However, employers still cannot make hiring and retention decisions based on certain factors, including the presence of a disability protected under the ADA. If you have been discriminated against because of a disability, contact an experienced employment law attorney in your area today to learn more about your legal options.