ADA Title I protects people from discrimination on the grounds of disability during the hiring process and employment. The ADA regulations apply to every aspect of employment, starting with the recruitment and selection process. This includes the requirement of medical examinations of persons with disability.
Can the employer require a medical examination?
A medical examination is as a test or procedure that seeks information about a person’s physical or mental health or impairments. Under the ADA rules, an employer’s right to make inquiries related to disability or require a medical exam is determined in three stages:
- Pre-offer Stage: This is the stage before an offer of employment has been made. The employer is prohibited from making any disability-related inquiry or requiring a medical examination at this stage, even though it may be related to the job.
- Post-offer Stage: This is the stage when the applicant has received a conditional offer of employment, but has yet to join the workplace. At this stage, the employer can conduct disability-related inquiries or medical examinations, provided they are doing it for all new workers in the same job category. These inquiries may or may not be job related.
- Employment Stage: This is the third stage when the employee has started working on the job. At this stage, the employer is permitted to make inquiries related to disability or require a medical exam only if it is related to the nature of job and is consistent with business necessity.
When is a medical examination job-related and consistent with business needs?
A medical examination or a disability related inquiry of an employee is considered job-related and consistent with business necessity as required under the law when the employer has an evidence-based reasonable belief that: (a) a medical condition will impair the employee’s ability to carry out the core job functions; or (b) an employee poses a significant risk of harm (“direct threat”) because of their medical condition.
Employer’s right to act on information from a third party
The employer can require a medical examination or make disability related inquiries about a worker based fully or partly on the information they received from a third party. The condition is that the information so received should be "reliable" and create a reasonable belief that the medical condition will impair the employee’s performance of core job functions or the employee will pose a direct risk of harm because of that condition.
Manner and scope of disability-related medical examination
If an employee makes a request to the employer for a reasonable accommodation, the employer may ask them to submit documentation that adequately substantiates that they have an ADA-covered disability and will need the requested reasonable accommodation. However, the employer is not permitted to request unrelated documentation, such as full medical records (which could contain information not relevant to the disability at hand).
The documentation will be considered "sufficient," if it: (a) describes the impairment’s nature, duration and severity, the activities it limits, and the degree to which it limits the worker’s ability to perform the activities; and (b) shows why the employee needs the reasonable accommodation they requested.
The employer may ask the requesting worker to send in these documents from their treating doctor, which substantiates that the worker has a disability, confirms that their hospitalization or treatment is related to the disability, and informs how they may have to remain absent from work.
Privacy and confidentiality of information
All information that an employer obtains from a post-offer disability-related inquiry or medical examination must be maintained separately and treated as a confidential medical record. The employer must take measures to ensure the confidentiality of the information by keeping it apart from regular personnel files in a separate, locked unit.
They must designate a particular person or team that alone will have access to these records. The information may be shared in limited exceptional circumstances, such as insurance purposes, workers’ compensation, with a first aid and safety team, as well as with a manager or supervisor who needs to understand the pertinent job restrictions and accommodations.
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