Employee medical exams, questions: What is allowed (Part II of II in a series)
In part I of this series, the terms medical inquiries and medical exams were defined, and examples of what employers may not ask or require were illustrated. In this part, what questions and exams are allowed are discussed.
If another federal law requires certain questions and exams, employers will not violate the Americans with Disabilities Act (ADA) when asking the questions or requiring the exams.
Non-disability-related questions that are allowed
Despite the questions employers are not allowed to ask (covered in part I of this series), they are allowed to ask some, such as asking employees:
- About their general well-being (e.g., “How are you?”);
- About non-disability-related impairments (e.g., “How did you break your leg?”);
- Whether they can perform their job functions;
- Whether they have been drinking;
- About their current illegal use of drugs;
- How they are feeling (e.g., pregnant employee) or ask, “When is the baby due?”; and,
- To provide the name and telephone number of a person to contact in case of a medical emergency.
Non-medical tests that are allowed
Employers may require employees to undergo a number of procedures and tests that generally are not considered medical examinations, including:
- Tests to determine the current illegal use of drugs;
- Physical agility tests, which measure an employee's ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure);
- Tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions;
- Psychological tests that measure personality traits such as honesty, preferences, and habits; and,
- Polygraph examinations.
Employers may also require employees to provide a doctor's note or other explanation to substantiate their use of paid or unpaid sick leave.
When medical questions and exams are allowed
Generally, to make a disability-related inquiry or require a medical examination of an employee it must be job related and consistent with business necessity. This happens when an employer has a reasonable belief, based on objective evidence, that:
- A particular employee's ability to perform essential job functions will be impaired by a medical condition; or
- An employee will pose a direct threat due to a medical condition.
Having a blanket policy requiring all employees to disclose their medications, for example, would not focus on a particular employee, so it would violate the ADA.
Employers may make disability-related inquiries or require a medical exam when an employee who has been on leave for a medical condition seeks to return to work — if the employer has a reasonable belief that an employee's present ability to perform essential job functions will be impaired by a medical condition or that the employee will pose a direct threat due to a medical condition.
Simply saying an employee poses a direct threat is not enough; employers must be able to show that a direct threat exists and cannot be reduced or eliminated by reasonable accommodation.
Key to remember: Employers are not always prohibited from asking employees medical questions or requiring exams, but they must tread carefully.
