Rulings stiffen rules for pre-hire medical testing

The Americans With Disabilities Act’s prohibition on pre-hire medical testing or inquiries continues to trip up employers, both with respect to what constitutes a “medical inquiry” as well as when such an inquiry can be made.

As most employers are aware, under the ADA pre-employment medical examinations are only allowed:

• After an offer of employment is made conditioned only on a satisfactory medical examination

• Such an examination is required of all individuals offered employment for similar positions

• Results of the examination are kept confidential

• The examination is not used to discriminate against individuals with disabilities, unless the results show the individual to be unqualified to perform the essential functions of the particular job.

In April, American Airlines was stung by a ruling in Leonel v. American Airlines. The court held that the airline violated the ADA’s required sequence for pre-hire medical inquiries/examinations by making medical inquiries, requiring individuals to take medical examinations before completing and making its hiring decisions based on background checks it also required of applicants.

In this case, three HIV-positive individuals applied for jobs with American as flight attendants. After interviewing each person, American made offers of employment contingent on their passing both background checks and medical examinations.

Before the background checks were completed, American sent each of the individuals to its on-site medical department for a medical examination. As part of the examination, they were required to complete a medical history questionnaire and provide a blood sample.

In responding to these medical inquiries, none of the individuals involved disclosed their HIV-positive status or medications they were taking related to this condition. As a result of their blood tests, American discovered that the individuals were HIV positive and rescinded the conditional job offers it had made on the basis that the individuals had failed to disclose requested information during their medical examinations, and was thus “falsification” and “grounds for non-hire,” according to the company’s application.

The court later held that the ADA prohibits any “medical examinations and inquiries until after the employer has made a ‘real’ job offer to an applicant.”

Citing guidelines of the Equal Employment Opportunity Commission, the court held that a job offer is only “real if the employer has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.” The only exception to this, the court noted, is if an employer can show it could not reasonably have completed all non-medical components of its application process before making a conditional offer.

On the latter issue, American argued that it required the applicants to undergo medical examinations before making a final hiring decision based on their background checks in order to minimize the length of the hiring process, both to help it compete for applicants as well as for the convenience of the applicants.

But the court held that because the individuals’ background checks were not completed before the medical examination process was conducted, the medical examinations were premature, and thus American could not penalize the individuals for failing to disclose their HIV-positive status.

The ADA regulates the “sequence in which employers collect information, not the order in which they evaluate it,” the court ruled.

Personality tests

In another ADA case, the 7th Circuit Court of Appeals ruled in June, in Karraker, et al. v. Rent-A-Center, et al., that Rent-A-Center’s use of the Minnesota Multiphasic Personality Inventory as part of its testing when considering employees for a promotion constituted a medical inquiry that violated the ADA.

In order to be considered for a promotion, Rent-A-Center required its employees to take the APP Management Trainee-Executive Profile. As part of the test, employees were asked 502 questions from the Minnesota Multiphasic Personality Inventory, or MPI. While the MPI can be used to diagnose certain psychiatric disorders, Rent-A-Center did not have the test interpreted by a psychologist using a clinical protocol to diagnose such disorders but, rather, had non-medical personnel use a vocational scoring protocol to identify personality traits.

Despite this distinction, the court held that because it is likely that a person who has a personality disorder would score high on this test and, thus, be precluded from promotion, the test was, in fact, a medical inquiry subject to the ADA’s restrictions on such inquiries.

The court also noted that the EEOC defines the term “medical examination” broadly, as any “procedure or test that seeks information about an individual’s physical or mental impairments or health.”

Factors the EEOC uses to consider whether a particular test is a “medical examination” include:

• Whether the test is administered by a health-care professional

• Whether the test is interpreted by health-care professionals

• Whether the test is designed to reveal an impairment of physical or mental health

• Whether the test is invasive

• Whether the test measures an employee’s performance of a task or measures his/her psychological responses to performing the tasks

• Whether the test normally is given in a medical setting

• Whether medical equipment is used

In the Rent-A-Center case, the court held that any one of these factors alone may be enough to determine that a procedure or test is “medical.”

Employers should note that although a pure “personality” test is not considered a medical examination under the ADA, and thus can be given at any time during the hiring process, any test that can also be used to diagnose mental illness may be deemed to be a medical examination. If so, it can only be administered after a conditional offer of employment is made, and only if the employer gives the test to all other applicants for similar positions and can show the test relates to essential functions of the job.

Bottom line: All employers need to make sure that any inquiries of a job applicant that could be said to be “medical” are only made as the final step of the hiring process, after a conditional offer of employment has been made contingent on nothing other than the results of such inquiries.

Anne Scheer, a shareholder-director at the Concord law firm of Gallagher, Callahan & Gartrell, represents both private and public sector clients in all aspects of labor relations and employment issues.

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