Privacy Issues in the Workplace

1. W HAT I S A M EDICAL E XAMINATION ? An employer is prohibited under the ADA and FEHA from conducting a medical examination of a job applicant prior to 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. 141

The EEOC has indicated that 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? 142

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2. W HAT I S A C ONDITIONAL O FFER OF E MPLOYMENT ? Under the FEHA and ADA, an employer’s ability to ask questions about an applicant’s medical condition and/or to require an applicant to undergo a medical examination depends primarily upon whether a conditional offer of employment has been made.

According to the EEOC, a conditional offer of employment is a job offer:

 that is made after the employer has evaluated all relevant non-medical information which could reasonably have been obtained and analyzed prior to making the offer; and  conditioned upon acceptable medical information that is directly related to job performance and business necessity. 143

If an employer is still waiting for the results of, for example, a criminal background check, an offer may not be considered a real conditional offer of employment. In the very limited case where an employer can show that it could not reasonably obtain and evaluate the non-medical information before a conditional offer was made, the EEOC would still consider it a real offer. 144

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 54