ADA & Case Law Guidance on Pre-Employment Medical Exams
Pursuant to the federal Americans with Disabilities Act (ADA) and California's Fair Employment and Housing Act (FEHA), employers may require a pre-employment medical examination to determine if an applicant can effectively and safely perform the job requirements of the position they are seeking. A person’s medical profile, however, is considered by the courts and the ADA as infinitely private and therefore should only be requested by the employer under the appropriate conditions and in the proper sequence.
The ADA requires that employers conducting pre-employment medical examinations do so as a "separate, second step of the selection process, after the individual has met all other job qualifications." This two-step process protects applicants who wish to keep their personal medical information private until the last stage of the hiring process. When the medical exam is the last step and "all non-medical components” of the hiring process are completed, applicants are able to “know when they have been denied employment on medical grounds."
In Leonel v. American Airlines, Inc., 2005 U.S. App. LEXIS 7328, claimants were given conditional offers of employment, contingent upon the successful passing of both the background screening and medical examination. American Airlines initiated a background check of the prospective employees and simultaneously required applicants to undergo a medical examination. During the medical examination American Airlines discovered that the claimants were infected with the human immunodeficiency virus (HIV) and rescinded their offers of employment citing the applicants' failure to previously disclose their condition. The claimants challenged the medical inquiries and examinations based on the ADA and California’s FEHA.
The Ninth Circuit Court of Appeals held that employers may not require job applicants to "undergo medical examinations before they hold real offers of employment." The ADA and FEHA state that an offer of employment is not "real" until the employer has "evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer." Non-medical information may include, but is not limited to, background checks, including employment verification and criminal history checks. Because American Airline's offers were subject to both the background check and the medical examination, the offers were found to not be real and therefore the medical examinations were performed prematurely, thus violating claimants' rights of privacy.
For additional questions concerning this decision, we recommend that you speak with your employment attorney.