What Is the EEOC’s Position on Post-offer/Pre-employment Medical Exams?

By Fiona W. Ong - Shawe Rosenthal LLP

June 14, 2018

This week, the Equal Employment Opportunity Commission trumpeted a $4.4 million settlement in a lawsuit in which the EEOC claimed that Amsted Rail had violated the Americans with Disabilities Act by disqualifying applicants based on the results of a test for carpal tunnel syndrome. In the EEOC’s press release, Andrea G. Baran, regional attorney for the EEOC’s St Louis District Office, was quoted as follows: “While it is lawful under some circumstances for employers to conduct limited medical exams after making conditional offers to job applicants, it is not ‘anything goes’.” Wait, what? Actually, I thought it was “anything goes” at that point!

In its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), the EEOC states as follows:

Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
 

Let’s focus on that second stage. The ADA specifically provides that an employer may require a post-offer/pre-employment medical examination as long as (1) it requires such examination of all entering employees, (2) it keeps the information received confidential, and (3) uses the results in accordance with the law.

The ADA regulations provide further clarification. First, employers don’t have to test all entering employees – just all of those entering the same job category. (So you could test certain field personnel positions, but not management, for example). But, more significantly, the regulations state as follows:

Medical examinations conducted in accordance with this section do not have to be job-related and consistent with business necessity. However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part.
 

The emphasis in the first sentence is mine – and I think this does mean that “anything goes” as far as what testing can be done. In other words, contrary to Regional Attorney Baran’s statement, the regulations do not require that the post-offer/pre-employment testing be “limited” in any way! And, in fact, in its Technical Assistance Manual on the ADA, the EEOC notes that, “The ADA does not require an employer to justify its requirement of a post-offer medical examination.” With regard to the case at hand, the regulations and other EEOC resources would appear to support Amsted Rail’s authority to require carpal tunnel syndrome testing of its applicants (assuming that it tested all applicants for particular job positions).

What I think was really the concern is that Amsted Rail automatically disqualified anyone who tested positive, but it ultimately could not show that the decision was job-related and consistent with business necessity. (The court previously found that a positive result was not a legitimate predictor of future injury). This automatic disqualification without the required showing, of course, would be a problem under the ADA.

But I am concerned that the EEOC Regional Attorney would issue a statement that appears to fundamentally misstate the law and the regulations, and that misleads employers as to their rights under the ADA. I would expect her to know better!