Avoid Costly Hiring Mistakes

Barbara Weltman

It’s a slippery slope that employers try to navigate when it comes to having certain physical standards for a job applicant. The Americans with Disabilities Act (ADA) bans employment discrimination based on a physical, mental, or emotional disability and requires employers to make reasonable accommodations for those with disabilities. But what’s a disability? Are physical requirements for job performance permissible? Some recent developments:

Using past medical history
How much past medical history is an employer entitled to know about and can it be used against a job applicant? In one case, a pre-employment physical turned up evidence of prior back surgery. Because the applicant’s doctors couldn’t assure the company that there would be any back problems, he had his job offer withdrawn. A federal district court said the employer violated the ADA (EEOC v. American Tool & Mold, Inc.)  The court said that the company could not rely on “myths and fears” about back surgery in general to make a determination about job fitness.

Using physicals
Requiring all job applicants offered a position to take a physical before starting employment seems harmless. It may uncover drug use or other conditions that would make it uncertain at best whether the person could do the job. However, using some findings to reverse a job offer is not permissible.

One company found out through the pre-employment physical that an applicant was diagnosed with prostate cancer and withdrew the job offer. A federal district court upheld the EEOC’s challenge to this action (EEOC v. Professional Freezing Services, LLC). This violated the ADA and the applicant recovered $80,000.

In order to rely on the findings in a medical examination and not be in violation of the ADA, a doctor must certify that the person is unable to perform the duties of the job. It’s not up to the company to make this determination based on information from the medical examination.

Other examples
The Equal Employment Opportunity Commission (EEOC) can bring an action against an employer when there is a claim of an ADA violation. Here are some recent pending actions; you can play judge and decide which way they should go:

  • A construction company wouldn’t hire a carpenter with dyslexia that prevented him from reading. The carpenter had 10 years of experience as a carpenter.
  • A cleaning company fired a worker who suffered from pregnancy-related health issues. The worker had a two-year unblemished work record and the pregnancy did not prevent her from doing her job.
  • An applicant with end-stage renal disease had a job offer as a store associate withdrawn because she needed a reasonable accommodation during the application process (she needed an alternate test to the usual urine analysis for drug testing).

Before making any adverse job-related decisions, consult an employment attorney to make sure you aren’t violating the law and exposing your company to possible litigation.

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