Monday, May 12, 2014

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.

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