4.6 Medical Examinations, Inquiries, and Disclosure of Medical Information

• Library: Employment Law in Virginia (Virginia CLE) (2020 Ed.)

4.6 MEDICAL EXAMINATIONS, INQUIRIES, AND DISCLOSURE OF MEDICAL INFORMATION

4.601 Medical Examinations Generally. The ADA limits the use of medical examinations. Medical examinations are tests that seek information about an individual's physical or mental health. In determining whether a particular test is a medical examination, an investigator will consider whether medical personnel administered or interpreted the test, whether the test is designed to reveal impairments, what the purpose of the test is, what equipment is used to administer the test, whether the test measures an applicant's performance of a task, and the degree of invasiveness of the procedure. ²²⁵ An employer does not run afoul of the ADA limitation on medical inquiries by inquiring into "bad work behavior [that] is connected to a medical condition," as the Fourth Circuit has held that "the ADA does not require an employer to simply ignore an employee's blatant and persistent misconduct, even where that behavior is potentially tied to a medical condition." ²²⁶

Physical agility and physical fitness tests are permissible, provided they test the candidate's ability to perform tasks actually required by the job, but an employer may not measure the candidate's physiological responses following the test.

Psychological examinations designed to measure a candidate's honesty, tastes, and habits are not medical examinations, but tests designed to measure whether a candidate has a mental disorder or impairment are considered medical examinations. ²²⁷

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Vision tests connected to a legitimate job requirement and consistent with business necessity (for example, reading labels) are permissible, but general eye examinations are considered medical examinations. ²²⁸

Drug tests to determine current use of illegal drugs are permitted. An employer may ask a candidate about his or her current use of illegal drugs, and the employer may follow up on positive tests. An employer may not ask about a candidate's lawful drug use if the question is likely to elicit information about a disability (for example, "What medications are you currently taking?").

Alcohol tests to determine whether an individual has consumed alcohol, and how much, are medical examinations and may not be administered during the pre-offer stage. An employer may ask about a candidate's drinking habits if the question is not likely to elicit information about alcoholism, which is a disability. ²²⁹

4.602 Admissibility of Receipt of Workers' Compensation Benefits. Evidence of a plaintiff's receipt of workers' compensation benefits is admissible, and it could be argued that any award of damages should be reduced by the workers' compensation benefits received. ²³⁰

4.603 Impermissible Inquiries. With job applicants, an employer cannot:

1.	Require the applicant to undergo a medical examination. 231 A "medical examination" is a "procedure or test that seeks information about an individual's physical or mental impairments or health"; 232
2.	Ask the applicant whether he or she has a disability. These inquiries are prohibited even where the disability

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	is obvious or the candidate has disclosed a disability voluntarily; 233
3.	Ask the applicant about the nature or severity of a disability. These inquiries, too, are prohibited even if the disability is obvious or the candidate has disclosed a disability voluntarily; 234
4.	Ask the applicant about his or her workers' compensation history; 235
5.	Ask a third party any question that the employer cannot ask the candidate directly about the candidate's health, physical or mental condition, or disability. An employer may, however, ask a third party any question that it may legally ask the employee; 236 or
6.	Ask an applicant whether he or she would need a reasonable accommodation to do the job. However, an employer can ask whether an applicant needs an accommodation and what type of accommodation will be needed if (i) the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability; (ii) the employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or (iii) an applicant has voluntarily disclosed to the employer that he or she needs reasonable accommodation to perform the job. However, the employer may not ask about the underlying health issue or physical condition. 237

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4.604 Examinations and Inquiries after Offer of Employment. After a bona fide offer of employment has been made to a job applicant but before the employee begins work, an employer can ask disability-related questions, can require the prospective employee to undergo a medical examination, and may condition the offer on the results of the examination, provided that (i) all entering employees in the same category are subjected to the examination regardless of disability; (ii) the results are kept in separate medical files (as opposed to regular...