• Post-Offer Medical Questionnaires
  • April 29, 2003 | Author: Amy Wright Littrell
  • Law Firm: Ford & Harrison LLP - Tampa Office
  • Employers frequently seek guidance on pre-employment medical and workers' compensation questionnaires issued to job applicants. Under the Americans with Disabilities Act (ADA), the legality of such questionnaires depends on the timing and the type of questions asked. According to the Equal Employment Opportunities Commission (EEOC), once a conditional job offer is made but before employment actually begins, the employer may ask "disability-related" questions and require medical examinations as long as this is done for all entering employees in that job category. A "disability-related" question is a question that is likely to elicit information about a disability, such as asking employees about whether they have or ever had a disability or about the kinds of prescription medications they are taking. Additionally, after an offer and before actual employment, an employer may also inquire about any prior occupational injuries compensable under a workers' compensation scheme.

    Although merely asking the "disability-related" questions may not be unlawful, if an employer rejects the applicant after the "disability-related" question or medical examination, EEOC investigators will closely scrutinize whether the rejection was based on the results of that question or examination. If the question or examination screens out an individual because of a disability, the employer must show that the reason for the rejection is "job-related and consistent with business necessity." 42 U.S.C. § 12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3).

    The real issue concerning medical questionnaires is whether the answers to the questions are important enough to receive heightened scrutiny from the EEOC. Although asking certain questions may not violate the ADA, the way the employer uses the answers may do so. Asking the questions is not the problem; however, knowing the answers may subject an employer to liability. For example, if a receptionist filled out a medical questionnaire and stated that he has a medical condition that would not affect his job performance, yet he was not hired, the EEOC would closely scrutinize the employer's decision. If the medical questionnaire was never filled out, the likelihood of the EEOC scrutinizing the employer's decision would not nearly be as great. In some circumstances "ignorance is bliss."

    Employers have several options to minimize exposure to this heightened scrutiny. First, the medical questionnaires could be handed out only to those applying for job categories in which the answers would truly be used to evaluate the individual's qualification (police, fire, laborers, etc.). Second, each individual applicant could be instructed only to answer those questions that are pertinent to their job category. Finally, the medical questionnaires could be tailored to each job category, which would alleviate the necessity for instructing the individual to only answer some of the questions. Implementation of any one of these options would reduce an employer's legal exposure. However, the fact remains that if you don't need to know the answers to these questions for job-related purposes and for a business necessity, it probably is not a good idea to ask the question.