Just What the Doctor Did Not Order: Pre-Employment Examinations and ADA Liability
By Sharona Hoffman, J.D., LL.M. candidate
Many employers require applicants who have been given job offers to undergo physical examinations prior to commencing their employment. Although these examinations can provide the employer with valuable information, they may give rise to liability under the Americans with Disabilities Act (ADA).
Employers often rely upon the advice of the doctor who conducts the pre-employment examination in making their final hiring decisions. Thus, if a physician recommends that an individual not be hired because he or she is obese, has a back impairment, or is afflicted with some other condition, the employer accepts the doctor's negative assessment without further scrutiny.
Employers, however, may not blindly accept the opinion of a doctor regarding rejection of a candidate without a thorough, individualized assessment of the applicant's ability to do the job. If an employer wrongly refuses to hire a qualified individual with a disability, it may be subject to liability under the ADA despite the involvement of a doctor in the decision-making process.
In recent years the Equal Employment Opportunity Commission (EEOC), has litigated many cases involving individuals who were rejected by employers based on the results of a pre-employment examination. Most commonly, applicants are rejected after a back x-ray reveals a back impairment such as spondylolisthesis or degenerative disc changes. The EEOC has taken the position that individuals who are asymptomatic and who routinely do physically demanding work may not be deprived of employment because of back abnormalities shown on radiological films.
In order to avoid ADA liability associated with pre-employment physicals, employers should educate the doctors conducting the examinations and implement several safeguards to assure compliance with the law. Several suggestions are outlined below.
Doctors Should Be Familiar with the Jobs in Question
Employers should ensure that examining physicians are thoroughly familiar with the jobs for which they are examining applicants. Physicians should be provided a detailed job description for each applicant examined. In addition, the physician should be invited to visit the worksite in order to observe employees engaged in the tasks implicated in each job so that the doctor can determine what stresses and strains are placed on the bodies of employees and what physical requirements apply to each job.
Doctors Should Be Educated Regarding the ADA
Secondly, doctors conducting pre-employment examinations should be given training regarding the ADA. They must understand that the employer has a duty to reasonably accommodate qualified individuals with disabilities and should be asked to suggest accommodations for such applicants. Furthermore, doctors must learn to understand that employers cannot reject employees who pose a very minor or hypothetical risk to the workplace. Rather, employees can be rejected only if they pose a "direct threat" (i.e., if a high likelihood of a severe and imminent injury exists). A doctor, for example, cannot declare an individual unfit to work if there is only a minimal chance of injury to himself or others or if the condition is a degenerative one and no harm is likely to occur for many years.
Attorneys should recognize that a tension may exist between the mandate of the ADA and the professional inclinations of responsible doctors. Physicians are trained to take every precaution with each patient to minimize, if not eliminate, the risk of harm. Doctors, thus, may be inclined to disqualify all individuals who have any risk of injury, no matter how small. Under federal law, however, individuals with disabilities cannot be deprived of the opportunity to work and support themselves unless serious and specific hazards are imminent. Therefore, the employer must scrutinize the physician's assessment and critically evaluate the individual's ability to work in light of the ADA's guidelines.
Employers Must Critically Review the Negative Hiring Recommendations Made by Examining Physicians.
The employer should designate a management level employee to review all negative hiring recommendations made by its doctor. If the doctor finds that a candidate failed a drug test, no further assessment of the doctor's recommendation is necessary. However, in the case of more complicated findings, meaningful scrutiny of the doctor's evaluation is appropriate. When the doctor makes a negative hiring recommendation, the employer should question the examining physician regarding the extent of testing he or she has conducted, the basis for the medical conclusions, and the likelihood and severity of any injury that might be suffered by the candidate, if employed. The employer may also wish to have access to one or more specialists, such as an orthopedic surgeon or a neurosurgeon, with whom it can discuss back impairments or other complex musculo-skeletal disorders detected by the general practitioner. If the employer retains lingering questions regarding the validity of the doctor's evaluation after an extensive discussion of the examination and its results, the employer would be prudent to send the applicant to a physician with more specialized knowledge for a second opinion.
Another option, which is being utilized in some instances, is the institution of a formal medical appeals process whereby applicants who believe that they can perform the job duties despite the medical finding in question, may request reconsideration or an examination by a second doctor. Although an appeals process may cause the employer to incur some expense, the money spent will be insignificant compared to the cost of litigation.
The steps outlined above do not guarantee that an employer will be shielded from liability under the ADA with respect to its hiring decisions. Nevertheless, these steps will significantly reduce the likelihood of ADA violations on the part of employers and should at the very least enable employers to avoid the imposition of punitive damages.