Privacy Issues in the Workplace

Also, if the known disability would not interfere with the performance of a job-related function, then the employer cannot ask the applicant how he or she would perform the job unless all applicants are asked the same question. 163 (e.g., the applicant is seeking a job as a typist and has a prosthetic leg). D. P OST -O FFER M EDICAL E XAMINATIONS AND I NQUIRIES After making a conditional offer of employment, an employer may, with certain limitations, obtain medical or psychological information about an applicant’s ability to perform essential job functions. 164 1. R EQUIREMENTS FOR P OST -O FFER M EDICAL E XAMINATIONS An employer may condition an offer of employment on the results of a medical examination, which is conducted prior to the start of employment, for purposes of determining fitness for the job in question if:

 all entering employees in the same job classification are subjected to such an examination;  an applicant or employee may submit independent medical opinions for consideration before a final determination on disqualification is made, if the results of such medical examination would result in disqualification; and  the results are maintained on separate forms and be accorded confidentiality as medical records. 165

Under the ADA, employers are afforded wide latitude in making general inquiries about an applicant’s medical background or disability status. According to the EEOC, “[o]nce a conditional job offer is made the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that category. If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.” 166 However, under the FEHA, an employer may inquire about an applicant’s medical condition and/or require a medical examination, but may never make general inquiries into an applicant’s medical background, disability status, etc. All such inquiries and/or examinations must always be directly related to the job in question and consistent with business necessity. 167

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