You asked: “Can we start requiring pre-employment physical exams to help us avoid hiring someone with a history of serious health issues?”
Laura answers:
The hiring process presents endless opportunities for unintended discrimination. One of the most hazardous areas is pre-employment medical exams.
The danger of discrimination comes into play when employers conduct these exams unnecessarily; or at the wrong point in the hiring process; are not consistent in conducting the exams; or are careless with the information gathered.
For jobs that do not involve significant physical requirements (many office jobs, for example), it is hard to justify requiring a pre-employment exam. For other jobs, however, it is vital that you confirm your candidate’s ability to perform the essential functions of the job. A shipping and receiving clerk, for example, must be able to lift large loads without significant risk to his/her health. A construction crane operator must not have a history of seizures as that would pose a clear threat to public safety.
First things first. For physically demanding jobs, a functional job analysis should be completed showing how much lifting, bending, twisting, and other physical requirements are involved. This job analysis should be given to the company-selected occupational physician or physical therapist who will administer the pre-employment exam, also called Physical Capabilities Tests or Functional Capacity Assessments.
The purpose of the functional capacity assessment is to determine that applicants who have received employment offers can perform, with or without accommodation, the essential functions of the job in question. To learn more about functional capacity evaluations, check out the entry on this subject in our previous posting: HR’s Role in Preventing Worker’s Comp Claims.
Once you’ve determined the test is necessary, you must then consider the timing. According to the Americans with Disabilities Act (ADA), an employer may not conduct medical examinations until after making a conditional job offer to the applicant. Once a conditional job offer is made, you can require your candidate to undergo a medical examination. But only if this is required of all candidates in that job category.
Here are some best practices for administering these tests:
· Be prepared: Before the job is posted, have a job description prepared that includes all the essential functions of the position, based on that Functional Job Analysis. (For help writing a job description, see our blog posting, “Time to talk about Job Descriptions”.)
· Be clear to applicants:
o If an exam will be required, the job posting should state, “Job will be offered on condition of meeting the predetermined essential physical requirements for the job. A medical examination is required.”
o The successful candidate should be given a written offer letter indicating that the position has been offered on a conditional basis, contingent upon the satisfactory results of a medical examination.
o A Medical Questionnaire and Physician’s Report should be enclosed. The applicant will fill out one section and the evaluating physician will complete the rest. Upon completion, this form is returned to the company.
· Inform the medical examiner:
o A copy of the signed offer letter, job description and the functional job analysis form should be sent to the doctor or therapist conducting the exam. (The candidate should bring the signed Medical Questionnaire and Physician’s Report.)
o Let the doctor/therapist know that any recommendations or conclusions related to hiring or placement of the candidate should focus on only two concerns: Can the individual perform the job functions with or without reasonable accommodations? And, can the individual perform the job functions safely, without posing a threat to the health or safety of self or others?
· Only job-specific information, based on the functional job analysis, should be given to the company by the examining doctor.
· Keep it confidential: Keep any medical information gathered confidential, in employee’s secured medical file, separate from their personnel file. This will ensure compliance with the ADA, the Genetic Information Nondiscrimination Act (GINA), and, of course, the Health Insurance Portability and Accountability Act (HIPAA).
In order to reject a candidate based on test results, you must demonstrate that the reason for the rejection is job-related and consistent with business necessity or the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.
If you need guidance with any step in the hiring process, please contact us through our website, www.eastcoastrm.com, via email at hrcounselorscorner@eastcoastrm.com or by calling us at 724-864-8745. If you’d like email notification of all blog updates, just click the follow button at the bottom of the window.
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