Another case of “bad” HR- Misusing medical information

Medical questions before a job offer are prohibited by the ADA.

Prior to the Americans with Disabilities Act being passed in 1990 it was common practice to ask medical screening questions on an application or at least on a separate sheet of paper. However, with the passage of that law 27 years ago it became illegal to collect medical information or have an applicant take a physical until such time they were made a job offer. After a job offer, you could screen and determine if the individual was able to perform the essential functions of the job. As a result of the law, medical questionnaires began to disappear and you would think by now, 27 years later, that everyone would understand they are illegal to use prior to making a job offer. Such is not the case.

EEOC sues a temporary agency

In a press release issued on September 19, 2017, the EEOC announced they are suing a staffing agency in Phoenix for “…forcing applicants seeking temporary employment to fill out an invasive medical questionnaire and answer medical questions before job offers…The federal agency also charged the company with denying job opportunities to applicants based on their answers.” Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits disability discrimination, including making pre-offer medical inquiries.
The lawsuit seeks back pay, compensatory damages, and punitive damages, as well as appropriate injunctive relief to prevent discriminatory practices in the future. Given that this is an agency that places workers in temporary employment, the numbers of people involved could be very large, which will, in turn, make the potential settlement very large as well.

It is no longer 1990

In the early 1990’s such an action might have been understandable. The law was new at that time and definitions were still being worked out. Twenty-seven years later that is not the case. The temp agency probably saw this as a competitive advantage, to be able to say we “medically screen applicants” but it was not legal. It also put their clients at risk, because under the EEOC, the temp agency is viewed as an “agent” of the hiring company. Some creative attorney could help someone denied a job with a company based on that medical questionnaire sue the company. That will remain to be seen.

What are employers supposed to be doing?

The ADA prohibits employers from requiring job applicants from taking a medical exam. Filling out a questionnaire qualifies as an exam. Employers may require a medical examination after making a conditional offer of employment to an applicant if the following items are true:

  • All new employees are required to take the exam regardless of disability.
  • The medical exam is the last stage of the screening process, even after the background check.
  • The applicant has to be determined not to be able to perform the essential functions of the job, with or without an accommodation.
  • If an accommodation is required there has to be a documented and interactive discussion around the request for an accommodation.
  • The medical information is kept in a confidential file.

This law has been around for 27 years. Today there is no excuse for not knowing the law. Ignorance is not a viable defense.

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