While an employer can conduct non-medical testing, such as background checks and consumer credit checks (if applicable), as part of its hiring practices, any physical examination must be conducted after all the other checks have taken place, as what amounts to the last step in the hiring practice.
The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) not only bar intentional discrimination on the basis of a disability, but both acts regulate the sequence of the employer’s hiring processes, and concludes that a medical
exam can be conducted only after a “real” offer has been made to the individual. A real offer is one which is made after the employer has evaluated all non-medical information (background checks, job testing), analyzed the information, and made the offer.
All testing is invasive of privacy rights; hence the requirement to make an initial offer before investigating an applicant. A medical examination is particularly invasive, however, and many individuals wish to guard their condition/history for fear of losing an opportunity in the event the employer finds out about a medical condition the employer perceives as undesirable.
This “two-step” process helps applicants to determine if they were rejected due to a disability. If the medical examination is the last step before employment and the applicant has passed all other tests/checks, the individual will know if they are being denied employment on medical grounds and can take action accordingly.
Many employers have argued that this two-step process is more costly and time consuming, preferring to send the applicant in for a battery of exams at the same time. Alternatively, employers have argued they review all the non-medical information before considering the medical information. Again, however — both the ADA and the FEHA contain statutes regulating the sequencing of all pre-hire testing, specifying the medical testing must be conducted last.
An employer would have to prove that there were no reasonable alternatives in order to conduct the medical examinations earlier, which is not an easy test under the laws. Nor is it a reasonable argument to claim that conducting the tests all at once is for the convenience of the applicant.
This argument does not justify re-ordering the steps in the hiring process.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
