How much do you really know about employment medical examinations and the law? Let's find out!
1. Assuming the results are not used in a way that violates the law, it is legal under the Americans with Disabilities Act to require a post-offer medical examination IF
A. The examination is job-related and consistent with business necessity.
B. The examination is narrowly tailored to determine whether the offeree can perform the essential functions of the job.
C. The examination is required of all persons offered positions in the same job category.
D. A and B
E. None of the above.
ANSWER: C. The ADA allows you as an employer to ask for any medical information post-offer, pre-employment, as long as you ask it of any person offered a position in the same job category. The medical questions at this stage do not have to be tailored to the job in any way. If you want, you can ask about childhood tonsillectomies and appendectomies, pregnancies and gynecological history, erectile dysfunction, and psychological problems. (Whether you want to know this much about your employees is another question.)
As long as you don't use the information to keep the person out of the job (or withdraw the offer only if the condition prevents the person from performing the essential functions with or without a reasonable accommodation), then you are fine from an ADA standpoint. Of course, you'd also have to keep the information confidential.
Why does she keep italicizing that ADA stuff? Hmmmm . . . better read on.
2. Since a drug test is not a "medical examination" within the meaning of the ADA, you (the employer) can require a pre-employment drug test at any stage of the employment process -- even before making a conditional offer of employment.
ANSWER: IT'S COMPLICATED. It is true that a drug test is not considered a "medical examination" under the ADA. Therefore, the drug test itself (going in a cup, analyzing the results) can be performed any time, with no problem. Why doesn't anybody do that? The reason is that a valid drug test requires more than "going in a cup/analyzing the results." You have to know about about lawful medications the person is taking that could affect the test result. Even though the drug test itself isn't an ADA "medical examination," those necessary questions about lawful medications are. ("Is"?) And that's why you do your drug testing post-offer. At the post-offer stage (see Answer to Question 1), all of those "legal medication" questions are legal.
3. It is legal to require your employees (or employees in certain job categories) to get a physical examination once a year.
A. TRUE, because an annual physical is important for wellness.
B. TRUE, because you have the right to ensure that your employees are in good health.
C. FALSE, because this would be an invasion of privacy.
D. FALSE, because once an employee has started work, you can require medical examinations only if they are job-related and consistent with business necessity or performed in connection with a voluntary wellness program.
ANSWER: D. You can't require a current employee to have any type of medical examination unless the examination is job-related and consistent with business necessity, required by another federal law, or required in connection with a voluntary wellness program. In the old days, pre-ADA, it was common for employers to require employees to get a physical every year, especially at the executive levels. Some employers still do this, but if you do, you should stop unless you meet the ADA requirements. (Probably the simplest solution is to move the "physical" requirement into your voluntary wellness program, but there is always the possibility that some folks will opt out of the program.)
4. If you require a post-offer medical examination, and don't plan to use the results in a way that would violate the ADA, you
A. Can relax. Everything's cool, yo.
B. Better be concerned about whether the post-offer examination is job-related and consistent with business necessity, in which case it would violate the ADA.
C. Better make sure that the health care provider doesn't ask about family medical history.
D. Better not relax, because it's always possible that you'll change your mind and decide to violate the ADA.
ANSWER: C. This question relates to the Genetic Information Nondiscrimination Act. Under the GINA, family medical history is "genetic information," which you are not allowed to obtain, directly or indirectly. (There are a few exceptions, but this is the general rule.) What that means is that you could send an offeree or employee for a medical examination that fully complies with ADA requirements, but if the doctor asks about family history (even if you don't know that the doctor is doing so), your company could be liable for a GINA violation.
Even as we speak, an employer in Illinois is the target of a potential class action lawsuit under the GINA because it allegedly required current employees to get physical examinations (a no-no in itself), and its doctors allegedly asked for family medical history. The case is in the very early stages, but the family medical history questions would violate the GINA if those allegations are true.
So how do you protect yourself as an employer, when you may not even know what the doctor is asking?
Two words: Safe harbor. The GINA regulations provide that if you give certain "safe harbor" language to the health care provider, you as the employer will be protected, even if the health care provider asks questions that he or she shouldn't. This language should be given to every employee you send to the doctor, and it should also be given to your doctors:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
So, there you have it. Copy and paste this text onto every form that you give to your employees to take to the doctor. (If you can't get your forms revised quickly enough, just copy and paste it onto a separate sheet, and give that to your employees.) Then you can take the afternoon off.
(CAUTION: If you know or have reason to believe that your doctor is asking for family history, you should address it with the doctor, in writing. The EEOC has indicated that the safe harbor language may not protect you if you have actual knowledge of repeated GINA violations.)
Let's close with one last quiz question.
5. The GINA "safe harbor" language should be given to the employee and health care provider in the following circumstances:
A. When someone is sent for an ADA-compliant post-offer, pre-employment medical examination.
B. When a current employee is sent for a medical examination that is job-related and consistent with business necessity.
C. When an employee is getting certification of the employee's own serious health condition under the Family and Medical Leave Act.
D. When an offeree or employee is sent for a drug test.
E. When an employee is sent for diagnosis or treatment for a workers' compensation injury.
F. When an employee is sent for an examination to determine whether he or she qualifies for short-term or long-term disability benefits.
G. When an employee is sent for an examination to determine whether an ADA reasonable accomodation is needed, or what type.
H. A, B, C, D, E, F, and G, and maybe some more situations that Robin didn't think about.
I. None of the above.
The correct answer, of course, is H. Use that safe harbor and stay safe, y'all!
Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.
For more information about LexisNexis products and solutions connect with us through our corporate site.