Employers – Be Careful with Physical Assessment Requirements

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A recent announcement from the Equal Employment Opportunity Commission warns employers to be thoughtful about any routine use of physical examinations. The EEOC found that a company provider of housekeeping, food and facilities support violated the Americans with Disabilities Act (ADA) in its use of a so-called Essential Functions Test (EFT) for its employees.

The ADA governs employers’ ability to require examinations of applicants and employees that may reveal a disability – these are considered to be medical examinations. Physical assessments fall within the scope of this definition, since an individual’s inability to pass the assessment may be due to a disability or a disability may be revealed in the course of the assessment.

With regard to applicants, employers cannot require them to undergo a medical examination. However, they may require a physical agility test (meaning one in which an applicant demonstrates  the ability to perform actual or simulated job tasks), as long as it is given to all similarly-situated applicants regardless of disability and no measurement of a physiological response is taken (like checking blood pressure or heart rate).

After a job offer is made, an employer may require a medical examination and it need not be job related, as long as it is required of all individuals entering the same job category. But if the employer then chooses not to hire the individual because of the results of the examination, the reason must be either (1) job-related and consistent with business necessity or (2) involve avoiding a direct threat to the health or safety of the individual or other employees.

As to employees, any required medical exam must be job-related and consistent with business necessity. This is limited to when an employer has a reasonable belief, based on objective evidence that either (1) the employee’s ability to perform their essential job functions is impaired by a medical condition, or (2) the employee will pose a direct threat due to the medical condition.

In addition, with regard to both applicants and employees, employers must explore whether there is any reasonable accommodation that would have enabled the individual to perform the essential functions of the job in question or reduce the threat to an acceptable level.

In this situation, the company required its employees to take the EFT upon hire, annually, and upon returning from a medical leave of absence. Those who failed any portion of the EFT were either not hired or were fired. The problem, according to the EEOC, is that not all portions of the test were job-related, and employees were fired despite being able to perform the essential functions of their job. In addition, the company did not offer any reasonable accommodations during the EFT.

So, there are several lessons to be learned here:

  • Physical assessments should be carefully tailored to the actual requirements of the job in question – no more.
  • Although employers may utilize physical agility tests in the hiring process, it is important to ensure that such tests for applicants do not measure any physiological response.
  • Also, even though employers have a wide latitude as to post-offer/pre-employment medical examinations, they need to ensure that any decision to revoke the offer based on the examination results is, in fact, job-related and consistent with business necessity.
  • As to current employees, any physical assessment must be job-related and consistent with business necessity.
  • At all stages of the employment process – applicant, post-offer/pre-employment, and current employees – employers must make reasonable accommodations for any known disabilities, not only to enable the individual to perform essential job functions and/or reduce any direct threat, but as to undergo the testing procedures themselves.

Calling a test an “essential functions test” does not make it so. If it tests for things beyond the actual essential functions of the job, it will be a violation of the ADA.