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Pre-Employment Medical Exams: Timing is Everything

A pre-employment medical exam should only be conducted after making a conditional job offer. Employers cannot ask for a pre-employment medical exam to be administered at any time prior. The Fair Employment and Housing Act (FEHA) and the Americans with Disabilities Act (ADA) both adhere to the precise sequence in which employers should be collecting pre-hire information. Having stated that, the pre-employment medical exam should be the final step in the pre-hire process.

Employers can be held liable in a court of law for not adhering to the guidelines. For example, American Airlines conducted simultaneous pre-hire medical exams and background checks, making conditional offers of employment contingent upon the results. Requesting the medical information was ruled unlawful as the request was made prior to a job offer. In other words, all non-medical elements of the pre-hire process must be completed and a conditional job offer extended prior to conducting a medical exam.

Per California's disability regulations, the law states that an employer can prepare a "bona fide offer of employment" on the outcome of a medical inquiry to ascertain an applicant's aptness for the job in question. What constitutes a "bona fide" job offer? In order for a job offer to be considered "bona fide", an employer must:
  • Have all non-medical components of the application process complete; or
  • Demonstrate that it could not reasonably be done before extending an offer.

As noted by the EEOC and CA regulations, it may not be reasonable to secure and evaluate all non-medical information at the pre-offer stage. Consequently, if an employer can prove this is the situation, the medical exam could proceed and the offer would still be classified as a real offer.

What should employers take away from all of this? A medical exam should be the concluding step of the pre-hire process. This should be done after the conclusion of all the other non-medical components of the process. Such components might include background checks, job testing and personal interviews. If, however, you feel that this requirement is a burden to your business, consult with legal counsel before proceeding.

Be sure that all other requirements are met with regards to pre-employment exams as well:
  • An exam must be given to all incoming employees in similar positions.
  • If an applicant is disqualified based on the results of the exam, the applicant is allowed to seek and submit independent medical exam results to be considered before the decision of disqualification is made.
  • These results should be recorded on separate forms and be treated as confidential records.

In conclusion, employers should revise their practices if they are sending conditional job offers to potential employees, while concurrently conducting background checks and pre-employment medical exams, and as previously stated they should only conduct a pre-employment medical exam after making a conditional job offer. All hiring managers should be given proper training with regards to the correct pre-hire sequence.

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