In light of workplace tragedies, including the recent reports of the German airline pilot that crashed the plane and had a history of depression, there is a spotlight on the tenuous balance that both employees and employers face regarding privacy and workplace safety. How and when may an employer inquire of the medical background of an employee, while also safeguarding its other employees and the workplace in general?
Anti-discrimination laws, both Federal and in the State of Florida, prohibit an employer’s ability to ask certain questions. Specifically, the Americans with Disabilities Act of 1990 (the “ADA”) limits an employer’s ability to make disability-related inquiries or require medical examinations at three stages: pre-offer, post-offer, and during employment. The Florida Civil Rights Act of 1992 (“the FCRA”) is patterned after Federal anti-discrimination laws and follows Federal case law interpreting the ADA.
Specifically, the ADA states, in relevant part:
“A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
The Equal Employment Opportunity Commission (“EEOC”), the Federal agency tasked with enforcement of most anti-discrimination laws, has interpreted this the ADA to require as follows:
“At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.”
Essentially, in the pre-offer stage, the ADA and FCRA prohibit an employer from asking disability-related questions or requiring a medical examination before making the individual a conditional offer of the new position.
The EEOC also requires:
“At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.”
However, there are a number of procedures and tests employers may require 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
Clearly there is a fine balance an employer must have when hiring new or retaining current employees who may have a disability that may cause future harm to other employees. To assure the safety of your company and employees while still being compliant with the law, contact Wilson McCoy, P.A. at 407-803-5400 or [email protected]. Our attorneys have extensive experience in handling cases and addressing disability scenarios on behalf of both employees and employers.
Source: EEOC’s Enforcement Guide – http://www.eeoc.gov