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HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Rescinding Job Offer After Medical Exam Q&A
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THIS WEEK'S E-TIP: 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. |
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THIS WEEK'S E-TIP: Rescinding Job Offer After Medical Exam Q&A
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.
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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. |
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Medical Procedures, Chapter 203, note 9.
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