You may be like many employers who require applicants to provide medical information as a part of the hiring process. If so, be careful that your policies and practices adhere to the strict requirements of the Americans with Disabilities Act (ADA). In general, the ADA regulates an employer’s right to ask medical questions of job applicants. Under the ADA, an employer is generally prohibited from seeking any medical information from applicants until after giving a conditional offer of employment to the applicant. A “conditional job offer” is a real job offer given after the employer evaluates all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer, and it conditions employment on passing a medical examination.
Practically applied, this requires employers who seek applicants’ medical information to do things in a particular order. Here is the order that will keep employers clear of ADA violations:
- Evaluate all non-medical criteria first, including, but not limited to, the applicants’ resumes, written examinations, personal interviews, background history, reference checks, driving record checks, credit checks, criminal records checks, etc.
- Determine the finalists you want to hire.
- Depending on the drug testing policy, require the finalists to submit to a test for illegal drugs, which the ADA does not consider to be a medical examination. (Note: Alcohol tests, by implication, are considered medical exams.)
- Offer a job to the finalists that is expressly conditioned on the passing of a medical examination. Your offer letter should clearly state, “This offer of employment is conditional pending the results of the medical examination…”
- Submit finalists to medical examination.
Be mindful that all applicants in the same job category must be treated the same and all must be required to complete a medical examination. Also, if the results of the medical examination will lead to the withdrawal of an offer to an applicant with a disability, the ADA requires that the exclusionary criteria must be job-related and consistent with the business necessity, and that no reasonable accommodation is available which would allow performance of the essential functions of the job.