By Laura L. Rubenstein, Esq.
Wright, Constable & Skeen, L.L.P
Q. My Company would like to have all applicants for employment submit to a pre-employment physical examination to ensure that they are fit for the position. Is this legal?
A. Employers may require an applicant to submit to a pre-employment physical examination, but only after a conditional offer of employment has been made, and even then only under the following conditions:
- All other candidates in the job category must also be required to submit to the physical;
- The candidate’s medical history is kept separate from other employment-related records and is treated confidentially; and
- The results are not used to discriminate against the applicant under the Americans with Disabilities Act (“ADA”) or other discrimination laws.
To ensure no ADA violation, the physical examination should be limited to an assessment of whether the applicant is able to perform the duties of the position, with or without an accommodation. To avoid a claim under the Genetic Information Nondiscrimination Act (“GINA”), the physician should not request information about the applicant’s family medical history.
It is important to provide the physician with a copy of the candidate’s job description prior to the examination so that the physician is familiar with the duties expected of the position, including the physical and mental requirements.
Employers will want to tread carefully in making an adverse employment decision based on the results of a physical exam. The applicant’s offer may not be rescinded unless the issue is job-related and consistent with business necessity, or creates a direct threat to health and safety of the applicant or others, and the condition cannot be reasonably accommodated. Moreover, the company could violate discrimination laws if it rescinds an offer based on non-medical information learned as a result of the physical (for example, the applicant’s age, religion, sexual orientation, marital status, gender identity, pregnancy, etc.).
For questions on this issue or any other employment policy, please contact Laura Rubenstein at firstname.lastname@example.org or 410.659.1347.
|Throughout her year legal career in Maryland and D.C., Laura Rubenstein has spent countless hours counseling local and national employers on all aspects of workplace legal issues. She represents businesses and nonprofit organizations in a wide range of matters, including investigating sensitive and confidential employment claims, negotiating employment and severance agreements, defending harassment, discrimination and retaliation claims and handling wage and hour lawsuits.
Laura represents clients before administrative agencies including the DOL, EEOC, NLRB, OFCCP, DLLR, among others. She listens and counsels on how to address workplace accommodations, employee theft, workplace violence, and leaves of absences and negotiates and drafts documents critical to the client’s individual needs. In addition to her support of many non-profits, including sitting on various Boards and committees in the community, Laura is an accomplished speaker, writer and is a certified mediator.