The “post offer, pre-employment medical examination” – it’s a popular tool used by many employers during the hiring process. However, if improperly administered, use of this type of examination can expose an employer to liability – as one employer learned in a recent case (EEOC v MGH Family Health Care) – a case the Court dubbed “a textbook case for unlawful discrimination under the regarded-as-disabled prong of the ADA.”
In this case, the employer (a medical center) hired a new employee and she was advised that she would be required to complete a “post-offer” physical examination. Under the employer’s general practice, all employees were required to undergo a “post-offer” physical with its third-party medical evaluator prior to beginning work.
While this type of practice typically poses no problem under the ADA, with respect to this particular employee, she was assigned employment duties prior to undergoing the physical examination. In addition, the third-party medical evaluator was not provided a copy of the employee’s job description before performing the examination.
The employee completed the physical examination and, while the results of the examination were normal, the employee’s medical records revealed some concern for the examiner and he put her on a “medical hold” and recommended the employee complete a functional capacity exam.
Two weeks after the employee had begun work (without incident), the employer notified the employee of the medical hold and informed her that she would need to undergo (and pay for) the functional capacity exam. The employee was also encouraged to obtain medical clearance from her own doctor relating to her ability to perform the job.
The employee provided the requested medical clearance to the examiner, which stated she was able to perform the job. In addition, the employer revised her job description to include lower lifting requirements. However, despite this information (and the fact that the employee had been performing the job for 5 weeks), the examiner refused to change his recommendation for a functional capacity exam.
Rather than explore the situation further with the employee, the employer terminated the employee – without having her complete the functional capacity exam.
Following her termination, the employee filed a lawsuit claiming disability discrimination. The court agreed — finding that there was “direct evidence of unlawful discrimination.”
What was this direct evidence? The employer’s admission that it fired the employee because it perceived her impairments as rendering her ineligible for the position – and it made that determination without first completing any type of individualized inquiry by the third-party medical evaluator. In doing this, the employer engaged in “textbook” disability discrimination in that it regarded the employee as having an impairment under the ADA, and ultimately determined she was unfit to continue to perform her job responsibilities because of that perceived disability without engaging in the interactive process.
Take away for employers
If employers wish to utilize post-offer, pre-employment examinations, they should be careful to follow the EEOC guidelines for disability related inquiries. Title I of the ADA strictly limits the circumstances under which employers may make disability related inquiries or require medical examinations of applicants. Once the employer has examined all non-medical information and has made a “real offer” of employment, it may require all entering employees in the same job category to submit to a medical exam. The employee should not begin work until the exam is complete. If the company withdraws the offer of employment it must show that the individual is unable to meet the essential functions of the job.