An Administrator's Guide to California Private School Law

Chapter 3 – Hiring

 “Have you ever been treated for any of the following diseases and conditions?”  “Do you take any medication?”  Do you have any learning disabilities that could interfere with your job duties?

3. W HAT I S A “M EDICAL E XAMINATION ”? As indicated, under the ADA and FEHA, a school may not conduct a medical examination of a job applicant until it has made a conditional offer of employment. According to the EEOC, a medical examination is a procedure or test that seeks information about an individual’s physical or mental impairment or health. 287 In Indergard v. Georgia Pacific Corp. , the Ninth Circuit Court of Appeals found that the examination given to a factory worker as a “fitness for duty” exam was an unlawful medical examination because the health care professional measured and recorded the employee’s heart rate and breathing after the treadmill test. The recording of the employee’s “increased oxygen” intake and “poor aerobic fitness” weighed heavily in favor of the court finding that the examination was a medical examination and not a fitness for duty examination. 288 According to the EEOC, the following factors are helpful in determining whether a procedure or test is a medical examination:  Is it administered by a health care professional?  Are the results interpreted by a health care professional or someone trained by a health care professional?

 Is it designed to reveal an impairment of physical or mental health?  Is it invasive (for example, does it require the drawing of blood, urine, or breath)?  Does it measure an applicant’s performance of a task (permissible), or does it measure the applicant’s physiological responses to performing the task (not permissible)?  Is it normally given in a medical setting (for example, a health care professional’s office)?  Is medical equipment used? 289

B. A FTER A C ONDITIONAL O FFER H AS B EEN M ADE After making a conditional offer of employment, a school may, with certain limitations, require an applicant to undergo a medical examination and/or inquire into an applicant’s medical background. A school may ask applicants health-related questions provided that it asks all individuals in the same job category who receive a conditional job offer the same questions, and the school can demonstrate a job-related business necessity for the inquiry. 290

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 92