Rescinding Job Offer After Medical Exam Q&A

Many employers require new employees to complete a post-offer
medical examination. But, do you know what you can do if this exam
reveals a serious medical problem? The ADA limits your response to
this situation.

Q: We require all new hires to have a medical examination prior to
beginning work. If the exam turns up a serious medical condition, may
we rescind the job offer?

A: Only in limited circumstances. Under the Americans with Disabilities
Act (ADA), you may revoke an employment offer based on information
obtained from the medical examination or inquiries if the criteria used are
job-related and consistent with business necessity. But, you also must
show that even with reasonable accommodation, the individual would be
unable to perform the essential job functions. Further, you may screen
out an applicant on the basis of a disability if the individual poses a
"direct threat" (i.e., a significant risk of substantial harm to himself or
others) and the risk cannot be adequately reduced by reasonable
accommodation.

This level of risk assessment can be very difficult to demonstrate. For
example, a medical examination might reveal that an individual has a
mild back deformity even though he is currently able to do the heavy
lifting that a job requires. This applicant likely should not be rejected
under the ADA. According to Equal Employment Opportunity
Commission (EEOC) regulations and guidance, the results of a medical
examination may not be used to disqualify people who are currently able
to perform the essential functions of a job.

In other words, the EEOC says you may not reject an applicant because
of "fear or speculation" that a current condition indicates a high risk of
future injury. Instead, you must base your assertion that the applicant
poses a "significant, current risk of substantial harm" on an individualized
assessment that reflects current medical knowledge and the best
available objective evidence.

Similarly, if applicants are rejected based on criteria such as "abnormal"
back x-rays, epilepsy, or lifting requirements, and those criteria tend to
screen out an entire class of individuals with disabilities, the employer
must be able to show that the exclusionary criteria are job-related and
consistent with business necessity. So, for example, in Miller v. City of
Springfield, 146 F.3d 612 (8th Cir. 1998), the court determined that the
police force did not violate the ADA by screening out applicants using
psychological testing designed to measure depression. The court found
that the psychological testing was job-related and consistent with
business necessity since it was used to select individuals to train as
police officers.

The EEOC, in its ADA Technical Assistance Manual, also has taken the
position that general "blanket" exclusions usually will not meet ADA
requirements because these evaluations do not involve an individualized
medical assessment of the applicant's current ability to perform the job
safely and effectively. However, a few courts have rejected the EEOC's
position and ruled that employers may use medical tests or inquiries to
screen out individuals who are not disabled but who may develop a
condition that would make them unable to perform a particular job.

For example, in EEOC v. Rockwell Internat'l Corp., 243 F.3d 1012 (7th
Cir. 2001), the Seventh Circuit determined that the employer did not
regard 72 applicants as disabled when it excluded them from
employment in jobs that had a high risk of causing cumulative trauma
disorders. The employer based its actions on test results showing that
the applicants were more likely than others to develop carpal tunnel
syndrome. The court upheld the employer's decisions because the
EEOC did not present evidence to show that the employer perceived the
applicants as substantially limited in their ability to work in any job in
Southern Illinois. Rather, the employer regarded the applicants as
unable to perform only four particular jobs at Rockwell.

Accordingly, if you want to rescind a job offer because of post-offer
medical results, make sure you carefully review the ADA requirements
and have individualized analysis to support your decision.

Get your FREE access to this and 100's of FREE HR resources today. Create a free account for the Personnel Policy Manual System.

Handbook/Policy Writing, HR Best Practices, Legal Compliance try the Personnel Policy Manual System.

This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.