Ready, Set, Hire! An Overview of Legal Issues in the Hiring Process for Businesses (Part 3 of 6)

Last week, we tackled the issues of mandatory insurance for employers and compliance posters in the workplace. This week, we will navigate the complicated and often shark-infested legal waters of post offer, pre-employment physical examinations.

Where the Problem Arises

The primary issue that can arise in conjunction with requiring applicants to undergo post offer, pre-employment physical examinations relates to the Americans With Disabilities Act (ADA). The ADA was enacted in 1990 to protect individuals with disabilities from discrimination in employment. In addition to prohibiting discrimination with respect to hiring, promotion, and termination, the ADA requires employers to engage in the interactive process to determine whether or not a reasonable accommodation exists for disabled employees.

In the context of hiring, the ADA only permits employers to ask disability-related questions or require medical examinations after a conditional job offer has been given. This protects individuals with disabilities so that they are not excluded from consideration before the employer actually evaluates their ability to perform the job. Prior to the conditional job offer, employers are only permitted to ask applicants about their ability to perform specific job functions by setting forth physical requirements and asking if the applicant can satisfy those requirements.

When Is It OK to Conduct a Physical Examination?

If the employer proceeds with a post offer physical examination, it is imperative that the examinations are done for all employees in the same job category. The law also provides that if the employer rescinds the conditional job offer after an examination or questions about a disability, the reason must be “job related and consistent with business necessity.” An applicant can also be rejected due to safety concerns only if the employer establishes that the applicant posed a “direct threat of substantial harm to the applicant himself or herself or others, and that the risk for such harm cannot be reduced through reasonable accommodation.” Litigation in this area typically involves a few key points: whether the job offer was a “real” offer; whether certain tests constitute medical examinations; and whether the applicant could perform the available position with reasonable accommodation. As you might imagine, case law in this area is very fact specific, so it is important to understand how the ADA applies to your particular situation.

Key Takeaways:

When done well and within the confines of the law, post offer pre-employment physical examinations have many benefits. They will potentially reduce exposure to Workers’ Compensation claims, allow the employer to avoid future safety and job performance issues, and save time and money. However, it is critical to balance these potential benefits with a careful approach to avoid running afoul of the ADA in the decision-making process. It is equally critical to remember that the original purpose of the ADA continues today, which is to protect disabled individuals from being discriminated against in the workplace, which includes the hiring process.

Up next, we will address the pros, cons and legal requirements associated with employee background checks in part 4 of this 6 part series.

This is a guest contribution by Eric J. Stark, Esq., of Caldwell & Kearns, P.C. in Harrisburg, PA. You can contact him via email or at 717-232-7661.

Caldwell & Kearns, P.C. is located at 3631 North Front Street, Harrisburg, PA 17110. They specialize in real estate, employment, business, and family law. Visit their website for more information.