Last night at an AGC of Middle Tennessee dinner, a contractor asked me, "Are pre-employment physical exams legal?"  I gave him my favorite legal response: "It depends!"

More and more, employers in the construction industry want to implement pre-hire health exam programs to determine whether prospective employees are physically capable of performing the particular construction job.  The concern for contractors is that a new hire with a physical limitation gets re-injured and costs the company to defend workers’ compensation claims.  So the legal question is whether the employer can conduct a pre-hire examination without violating either state or federal law.

What are the legal limitations?  The American with Disabilities Act (ADA), which applies to employers of 15+ full-time employees, comes into to play in this situation. In addition, your particular state’s human rights laws probably adopt the same or substantially similar limitations as those required by the ADA.  The fear is that, as an employer, you do not want to face a claim of discrimination for refusing to hire someone with a physical disability that is protected under the ADA or its state law companion.

In order to comply with both state and federal law, the following general requirements should be met:

  1. An offer of employment should be made conditioned on the results of a subsequent physical health examination.
  2. The health examination focus only on the job-related abilities that are essential to the position.
  3. The health examination should be required of all people that are conditionally offered employment for the particular position.

What happens when the health examination demonstrates a limitation?  If the person does not pass the physical examination and the employer decides to withdraw the conditional offer of employment, then it must notify the person within 10 days of the decision to withdraw.  The employer must provide the medical basis for withdrawing the offer. 

What are some best practices for implementing a program?  Of course, each state is different.  However, some general tips to follow include:

  • You should have a written file on the physical requirements of each job description, which can be used by the examining physician
  • Any information learned from the health exam should be kept confidential, so as not to violate any privacy rights of the prospective employees
  • Leave the medical assessment to the health examining physician and do not ask medical questions during applicant interviews

The law can be confusing when talking about pre-hire health exams and you are well advised to seek legal counsel if you want to develop such a program.  

Image: Lower Columbia College