Title I Technical Assistance Manual

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.