JAN is a service of the U.S. Department of Labors Office of Disability Employment Policy. 1 Medical Inquiry in Federal Sector Hiring and Employment Linda Carter Batiste, J.D., & Beth Loy, Ph.D., Principal Consultants

Medical Inquiry Rules Vary at Stages of Employment Pre-job offer Post-job offer Employment 2

Medical Inquiry Why have medical inquiry/exam rules? Discrimination, stereotypes, and assumptions Liability concerns Legitimate need for information 3

Medical Inquiry What is a medical inquiry? A medical or "disability-related inquiry is a question (or series of questions) that is likely to elicit information about a disability. 4

Medical Inquiry Disability-related inquiries may include asking an employee: Whether s/he has a disability Medical documentation Genetic information Workers' compensation history Prescription drugs About his/her impairments in general 5

Medical Inquiry Allowable questions include asking: Generally about an employee's well-being About nondisability-related impairments Whether employee can perform job functions Whether employee has been drinking About employees current illegal use of drugs A pregnant employee how she is feeling or when her baby is due For the name and telephone number of a medical emergency contact 6

Medical Inquiry What is a medical examination? A "medical examination" is a procedure or test that seeks information about an individual's physical or mental impairments or health. 7

Medical Inquiry Factors to Consider: Administered by a health care professional Interpreted by a health care professional Designed to reveal an impairment or physical or mental health Invasive Measures physiological responses to performing the task Normally is given in a medical setting Medical equipment is used 8

Medical Inquiry Tests and Procedures That Are Probably NOT Medical Examinations: Tests to determine the current illegal use of drugs Physical agility tests, which measure an employee's ability to perform actual or simulated job tasks Physical fitness tests, which measure an employee's performance of physical tasks, such as running or lifting Tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions Psychological tests that measure personality traits such as honesty, preferences, and habits Polygraph examinations 9

Medical Inquiry Ask Yourself: Is it a medical question or examination? What stage of employment? 10

Medical Inquiry Pre-job Offer Stage General Rule = No medical inquiries or examinations Applications Interviews Exception Accommodation request for interview Reasonable belief 11

Medical Inquiry Pre-job Offer Stage Affirmative action and schedule A Voluntary Purpose Confidential No adverse action 12

Medical Inquiry Pre-job Offer Stage Allowed: Qualifications Describe or demonstrate With or without accommodations Attendance/absences 13

Medical Inquiry Pre-job Offer Stage Example 14

Medical Inquiry Post-job Offer Stage General Rule = All medical inquiries and examinations allowed All entering employees in the same job category are subjected to the examination/inquiry, regardless of disability Medical information obtained is kept confidential 15

Medical Inquiry Post-job Offer Stage Example 16

Medical Inquiry Employment Stage General Rule = All medical inquiries and examinations must be job-related and consistent with business necessity 17

Medical Inquiry Employment Stage Job-related/consistent with business necessity: Employee's ability to perform job functions in question Belief that employee will pose direct threat Reasonable accommodation request Required in positions that affect public safety 18

Medical Inquiry Employment Stage Ability to perform job impaired by medical condition Reasonable belief based on objective evidence 19

Medical Inquiry Employment Stage: Ability to Perform Job Example 20

Medical Inquiry Employment Stage Direct Threat: Significant risk of substantial harm Specific risk must be identified Current risk, not speculative or remote Risk based on objective medical or other factual evidence Must consider whether the risk can be eliminated or reduced 21

Medical Inquiry Employment Stage: Direct Threat Example 22

Medical Inquiry Employment Stage Accommodation request Not obvious or known 23

Medical Inquiry Employment Stage: Accommodation Request Sufficient Disability Functional limitations Need for accommodation Appropriate medical professional 24

Medical Inquiry Employment Stage: Accommodation Request Example 25

Medical Inquiry Employment Stage: Accommodation Request Who pays? 26

Medical Inquiry Employment Stage: Accommodation Request What if the employee does not provide documentation? 27

Medical Inquiry Employment Stage Public safety jobs Police Fire fighters Pilots Bus drivers 28

Medical Inquiry Employment Stage: Public Safety Jobs Example 29

Medical Inquiry Other Issues Sick leave Prescription medication Emergency evacuation Wellness programs 30

Medical Inquiry Confidentiality General rules Disability awareness 31

Medical Inquiry HIPAA 32

Medical Inquiry GINA 33

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