Medical Exams Under the ADA
Employers must comply with certain rules regarding medical exams of applicants and employees. If an employer violates these rules, it can constitute employment discrimination. The ADA states that employers can’t ask applicants to take a medical exam before a conditional job offer is made & everyone in that class of jobs must also take the exam. Similarly, existing employees can’t be asked to take a medical exam unless it’s job-related & consistent with business necessity. The EEOC Guidance states that an inquiry or medical examination may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
But, what is considered a medical exam? We know that drug testing is not considered medical and employees can be subjected to drug testing at any time. What about employer-ordered counseling? Is psychological counseling a “medical examination” under the ADA?
When an EMT, employed since 2003 without serious problems, began showing signs of distress at work, leading coworkers to report concerns about her well-being to her supervisor, the supervisor met with the employee and ordered her to attend psychological counseling. The employee refused.
The 6th Circuit U.S. Court of Appeals (Ohio, Michigan, Kentucky, and Tennessee), concluded by a split vote, that the required counseling was a medical examination.
EEOC provides a seven-factor test in its guidance regarding what constitutes a medical exam for ADA purposes. These factors are:
- whether the test is administered by a health care professional;
- whether the test is interpreted by a health care professional;
- whether the test is designed to reveal an impairment or physical or mental health;
- whether the test is invasive;
- whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
- whether the test normally is given in a medical setting; and
- whether medical equipment is used.
Not all seven factors must be met, however; in certain cases even one factor may be sufficient to determine that a test amounts to a medical examination.
However the case was remanded (sent back) to the District Court to determine if the examination was “job related” and consistent with “business necessity,” noting that the employer may still win the case.
This case serves as a reminder & caution to employers to understand & recognize that even psychological counseling may need to be job-related and justified by a business necessity. The fact that required counseling is to be performed by a psychologist or other professional who is not a doctor does not necessarily remove it from the legal requirements that apply to “medical examinations” under the ADA. When dealing with employee behavioral issues best practices indicate that:
- It’s advisable to treat unusual or inappropriate behavior as a conduct issue first, not a medical issue.
- It’s also advisable to document all actions taken to assist an employee and make it very clear what the purpose of the direction the employer is giving the employee.
If you’re not sure about employer rules regarding medical exams, especially as the rules related to different stages of employment, contact Springboard for assistance.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.