Ninth Circuit: Requiring Applicant to Pay for Pre-Hire Medical Testing Violated ADA


Employers with 15 or more AK, AZ, CA, HI, ID, MT, NV, OR, WA, Guam, and Northern Mariana Islands Employees


August 29, 2018


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The Ninth Circuit Court of Appeal recently stated that an employer violated the Americans with Disabilities Act (ADA) by requiring a job applicant to obtain, and pay for, additional medical testing as part of a condition of employment.

In EEOC v. BNSF Railway Co., a job applicant disclosed information about an old back injury during a pre-hire medical review.  Despite receiving a clean bill of health from three doctors, the employer requested that he obtain an MRI, among other things, at his own expense to verify that there would be no physical limitations due to his back condition.  The employer rescinded its conditional job offer when the applicant did not comply with the request.

The Ninth Circuit stated that the employer’s actions were discriminatory because, based on a perceived disability, the employer required the applicant to bear the cost to prove that there was no impairment as a condition of employment, despite the fact several healthcare providers determined that the applicant was qualified to perform the physical requirements of the position.  Additionally, employers must bear the financial burden of follow-up medical testing on individuals with perceived or actual disabilities.

Prospective employers should ensure that any post-offer, pre-employment medical exams are necessary to assess the candidate’s ability to perform the job, and must be conducted in a manner that does not discriminate against applicants.

Action Items

  1. Have post-offer, pre-employment medical review practices reviewed with counsel for compliance with this ruling.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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