1. Introduction

     It is easy for an employer to know what to do when a job applicant "clearly passes" or "clearly fails" a job-related pre-employment medical examination: if the applicant clearly passes the examination, the applicant is employed; if the applicant clearly fails the examination, the applicant is not employed. But what is an employer supposed to do with the report of an inconclusive medical examination?

     2. Statutory Background

     The ADA allows an employer to use pre-employment medical examinations under certain circumstances, and subject to certain limits. The ADA provides that an employer "may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if (A) all entering employees are subjected to such an examination regardless of disability; (B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record [with a few exceptions]; and (C) the results of such examination are used only in accordance with [the ADA, i.e., the results are not used to unlawfully discriminate against the applicant.]" 42 U.S.C. §12112(d)(3). The ADA also provides that an employer "may make pre-employment inquiries into the ability of an applicant to perform job-related functions." 42 U.S.C. §12112(d)(2)(B).

     3. Inconclusive Examination Results: A Case History

     In the real world, job-related medical examinations often may result in inconclusive or conflicting reports concerning the fitness of applicants for offered positions. What is an employer supposed to do with such an inconclusive report?

     I defended an employer in a disability discrimination case arising out of this type of situation. A partially-deaf job applicant was offered a job on the condition that he take and pass a job-related pre-employment physical. The applicant took the physical, but the examining doctor found some matters of concern and recommended that the applicant be further examined by a specialist. The applicant did not go to the specialist, was not hired, and brought a disability discrimination claim against the employer. The Maine Human Rights Commission rejected the applicant's claim. In a letter to the MHRC, the employer argued the law applicable to this case as follows (names have been changed, certain details omitted, and text edited):

     "The key to understanding why the applicant has no valid disability discrimination claim in this case is to understand what an employer lawfully may and may not do in response to being informed of the results of a post-job-offer physical examination.

     In this case, the applicant was lawfully given a proper post-job-offer physical examination on June 6, 1996, and the employer was informed of the results of that physical examination the same day. The parties are in agreement that after the applicant took the physical examination, he returned to the employer's premises and spoke with the company interviewer about it. Although the parties dispute exactly what was said in that conversation, the parties are in agreement that the company interviewer did not flatly reject the applicant's job application at that time; rather, the company interviewer asked the applicant to see an ENT specialist for any restrictions the applicant might have. The company interviewer says that the applicant agreed to see an ENT specialist and report back to the company interviewer. The applicant does not specifically say one way or the other whether he agreed to see an ENT specialist and report back to the company interviewer, but the applicant admits that he did, in fact, subsequently see an ENT specialist in July, 1996.

     The medical report received by the company interviewer is in evidence, and it clearly states right on it that the applicant had a "detected medical condition" [involving the applicant's ears and his hearing] which "may be aggravated by occupational exposures or activities" and which "needs follow-up." On the basis of this report, the company interviewer asked the applicant to follow-up with an ENT specialist. The company interviewer did not simply reject the applicant's application.

     I respectfully suggest that the company interviewer took exactly the right action in response to the medical report he received: not too much, and not too little. The company interviewer's choice on that afternoon of June 6, 1996 was (1) to put the applicant to work immediately, in spite of the report's findings and recommendations, (2) to reject the applicant's application, or (3) to put the applicant's application on hold while he followed-up with an ENT specialist as recommended. The law not only authorizes but requires an employer to make an individualized assessment of a job applicant, and that is exactly what the company interviewer was doing when he asked the applicant to follow-up with an ENT specialist. In making that request, the company interviewer acted on the basis of documented medical information received from a competent, third-party medical provider, not on the basis of an unsupported assumption or a stereotype. We know from the applicant himself that the company interviewer was not prejudiced against him: the company interviewer had offered him a job and initially indicated that his hearing impairment would not be an employment problem. It was only after the company interviewer received the medical report that he became aware of the need for the applicant to have a follow-up evaluation.

     It is a necessary corollary of the individualized assessment requirement that in some cases, such as this one, it may take a little bit of time to make an individualized assessment of a job applicant, but an employer is not obligated to employ an applicant before that assessment is completed. Phrased another way, an employer has a right to take a reasonable amount of time to make an individualized, job-related assessment of a job applicant prior to putting the applicant to work. The law does not require or expect instant or quick assessments. If the applicant was too impatient to go through a reasonable and reasonably-required assessment process, the employer cannot be held liable for that.

     The applicant may have thought at the time, and he may still think, that he was justified in refusing to go through a further assessment process, but he is simply not dealing with the reality of the written report received by the employer at that time. From an objective point of view, it is apparent that the employer could not simply ignore the report and put the applicant to work. Also, the applicant is confusing proof of his alleged justification for his refusal to undergo a further assessment (i.e., his belief that the report was inaccurate) with proof of a lack of justification for the employer to request a further assessment. The alleged presence of his justification for his belief does not prove the absence of the employer's justification for its action.

     The applicant has suggested that the medical report was inaccurate or overly cautious. My response is that the employer properly relied on and did not overreact to the medical report that was received, whether that report was right or wrong. Any suggestion that the medical report the company interviewer received was inaccurate is beside the point: the company interviewer had a right to rely on a medical report received from an independent, reputable health care provider not under the company's control or in the company's employ. An employer is not an insurer for the accuracy of a medical provider's report. If a report is inaccurate, the employer is not liable for that when the employer is willing to continue the individualized assessment process and does not make a final hiring decision on the basis of that inaccurate report.

     To the extent that the applicant told the employer on the afternoon of June 6, 1996 that he disagreed with the medical report (the company interviewer has not indicated that the applicant disagreed with the report, and the applicant has indicated that he did disagree with the report at that time), the employer took appropriate action, namely, to instruct the applicant to follow-up with an ENT specialist and report back to the employer. An employer that has sent an applicant for a post-offer physical examination is not required to accept or agree with the applicant's view or interpretation of the examination results. In this case, the examination results indicated that a follow-up evaluation was needed, so the employer was justified in requesting such a follow-up evaluation. The applicant's apparent claim that he simply should have been put to work immediately and without any further evaluation should be rejected."

DISCLAIMER: All information is provided for educational or promotional purposes only and not as legal advice on a particular matter. The information is provided AS IS with no warranties of accuracy, completeness, merchantability, or fitness for a particular purpose. Providing this information DOES NOT create an attorney-client relationship between Lawrence C. Winger, Esq. and the reader. All information is Copyright (c) Lawrence C. Winger, Esq. 2000 All Rights Reserved.

Dated: January, 2000
[Top Of Page]