Overview: Before making a job offer, an employer is prohibited from requiring a prospective employee to undergo a medical exam. After making a job offer, medical tests may be conducted so long as they are performed on all applicants in a particular job category and do not discriminate against individuals with disabilities.
However, not all examinations are considered equal under the ADA. For instance, physical fitness tests are not considered medical exams so long as they relate to an essential job function and do not measure physiological or biological responses. Psychological tests designed to measure tastes and habits also do not qualify as medical tests. As a result, these tests may be performed prior to making a job offer.
If an employer does withdraw a job offer because of the results of a medical exam, this withdrawal must be job related and consistent with business necessity. It also is important that employers keep all medical information obtained from an examination confidential, including information that an applicant discloses voluntarily.
Trends: Both the federal government and the states have taken steps to restrict the use of genetic testing in recent years. The Genetic Information Nondiscrimination Act (GINA) prohibits using genetic information in employment decisions, and restricts the acquisition and disclosure of such information. Many states have followed suit.
While a few limited exceptions do apply, employers should steer clear of conducting genetic testing or seeking an applicant's family medical history.
Author: David B. Weisenfeld, JD, Legal Editor
Updated to reflect an amendment under the forthcoming Medical Marijuana and Patient Protection Act.
Updated to include amendment to law regarding expungement of criminal records, effective June 7, 2019.
Updated to reflect forthcoming New York City law relating to preemployment testing of marijuana.
Updated to reflect forthcoming state law affecting negligent hiring claims.
Updated to include forthcoming law regarding background checks.
Updated to include amendment to state medical marijuana law, effective March 18, 2019.
Updated to reflect forthcoming Cincinnati ordinance regarding salary history inquiries.
Updated to reflect expansion of criminal records expungement law, effective December 27, 2018.
Updated to reflect Clean Slate Law involving access to criminal records, effective December 25, 2018.
Updated to reflect the Michigan Regulation and Taxation of Marihuana Act, effective December 6, 2018.
HR guidance on when medical examinations of prospective employees may be conducted.