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EEOC letter draws the line between lawful, unlawful medical inquiries

June 15th, 2012  |  Pamela Wolf

The U.S. Equal Employment Opportunity Commission (EEOC) has released an informal discussion letter that spells out the difference between lawful and unlawful medical inquiries under the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA). Because Section 501 of the Rehab Act, which applies to federal employees, adopts the standards of Titles I and V of the American’s with Disabilities Act (ADA), the letter serves as a reminder to private employers as to when and what sort of medial inquiries may be made during the hiring process without running afoul of the ADA and other federal antidiscrimination laws.

Medical inquiries and the ADA. The letter comments on proposed changes to the application process for Peace Corps Volunteers, particularly the process for reviewing the past medical history of applicants. EEOC Legal Counsel Peggy R. Mastroianni underscored several ADA restrictions on medical inquiries of applicants:

  • There is no exception to the straight-forward rule that disability-related inquiries or medical examinations are prohibited in the pre-offer stage of the application process. 
  • If applicants must fill out any medical questionnaires prior to the receipt of a conditional job offer, use of the forms violates the Rehabilitation Act [and the ADA]. 
  •  After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category. 
  • Once employment begins, an employer generally may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. 
  • In the post-offer stage of the application process individual applicants may be asked questions not asked of other applicants if those questions are “medically-related” to medical information previously received.

Offer withdrawal. Under the ADA Amendments Act, withdrawing an offer based on the information obtained from a post-offer health history inquiry or follow-up medical questions will likely result in a finding that the applicant was regarded as having a disability, according to Mastroianni. Therefore, the employer would be required to establish that the particular impairment renders the individual unqualified to perform the essential functions of the job or, where the employer has excluded the applicant due to safety concerns, that the applicant poses a direct threat because of the impairment.

When the applicant’s impairment substantially limits a major life activity or constitutes a record of a substantially limiting impairment, the employer’s determination of whether the applicant can perform the essential functions of the job must also include consideration of whether a reasonable accommodation would enable performance of the job functions or would reduce any direct threat to an acceptable level.

GINA-related considerations. Pursuant to Title II of GINA, employers are prohibited from requesting, requiring, or purchasing genetic information — including family medical history — from applicants or employees, except under very limited circumstances. Therefore, questions about an applicant’s family medical history or genetic information are unlawful under GINA. “There is no exception to the general rule prohibiting employers from requesting genetic information of an applicant in a medical questionnaire,” Mastroianni wrote.

Title VII, ADEA. Part of the Peace Corps’ application process included post-offer medical questionnaires required only of applicants in certain protected groups — e.g., a “Mammogram Form” required only of women age 50 and over. Thus, it appeared that women and a protected age group were required to undergo medical tests not required of applicants outside of these protected groups. This requirement raised a big red flag under Title VII, which prohibits sex discrimination, and the ADEA, which prohibits discrimination against persons age 40 and over. Mastroianni characterized an application process with these requirements as “facially discriminatory.”

What does all this mean for employers? The EEOC’s letter is not considered an official opinion of the agency, it nonetheless points to several best practices worth keeping in mind:

 Do not subject applicants to disability-related inquiries or medical exams prior to a conditional offer of employment.

After a conditional offer of employment, make disability-related inquiries and require medical exams only if the same is required of all entering employees in the same job category.

 After employment commences make sure that any disability-related inquiries or medical exam requirements are job-related and consistent with business necessity.

 Any post-offer questions not asked of others must be confined to those which are medically related to medical information already provided by the applicant.

 If an offer is withdrawn based on medical information provided by the applicant, make sure it can be established that either: 

  • the particular impairment at issue renders the individual unqualified to perform the essential functions of the job; or
  • the applicant was excluded for safety reasons because he or she poses a direct threat due to the impairment.

 Do not ask questions about an applicant’s family medical history or genetic information.

 Do not make medical inquiries of or require medical exams for protected category members, such as women and older applicants, unless the same inquiries and exams are also imposed on applicants outside the protected categories.