Employment Law Updates

The Americans with Disabilities Act (ADA) imposes limits on requesting medical information from a job applicant. Before extending a job offer, it is unlawful for an employer to (1) ask an applicant medical questions, or whether he/she is disabled, or about the nature or severity of a disability; or (2) to require the applicant to take a medical exam before making a job offer. You can ask the applicant questions about ability to perform job-related functions, as long as the questions are not phrased in terms of a disability.

After a job offer is made and prior to the commencement of job duties, you may require an applicant to take a medical exam if everyone in the same job category must also take the exam. You may condition the job offer on the results of the medical exam. If a person is not hired because the exam reveals the existence of a medical impairment, you must be able to show that the impairment is directly related to an essential function of the job, and that there is no reasonable accommodation that would make it possible for the applicant to perform the essential job function.

For example, a job opening requires an employee to lift 50 pound sacks of flour frequently throughout the work shift. An applicant is given a conditional job offer and then sent to a medical exam which reveals a spinal condition that prevents the employee from lifting more than 20 pounds. Before you can withdraw the job offer, you must determine whether there is any reasonable accommodation that would allow the employee to perform the essential functions of the job.

Although an employer can require an employee to take a medical exam after a conditional offer of employment, please note that Va. Code § 40.1-28 provides: “It shall be unlawful for any employer to require any employee or applicant for employment to pay the cost of a medical examination or the cost of furnishing any medical records required by the employer as a condition of employment.”

Feel free to contact us if you have questions about this matter.

PLDR Law John Falcone 1

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