Chapter § 3-13 § 1630.13. Prohibited Medical Examinations and Inquiries

• Jurisdiction: United States

3-13 § 1630.13. Prohibited Medical Examinations and Inquiries

(a) Pre-employment examination or inquiry. Except as permitted by § 1630.14, it is unlawful for a covered entity to conduct a medical examination of an applicant or to make inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of such disability.

(b) Examination or inquiry of employees. Except as permitted by § 1630.14, it is unlawful for a covered entity to require a medical examination of an employee or to make inquiries as to whether an employee is an individual with a disability or as to the nature or severity of such disability.

3-13:1 Commentary

• Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005) (personality test held to be a medical examination and therefore it violates the ADA; employees, to be considered for promotion to management positions required to take personality inventory (MMPI), which measures where an applicant falls on scales measuring depression, hypochondria, hysteria, paranoia, and mania, where elevated scores may indicate a mental disorder; the court concluded that the test likely excluded employees with mental impairments from promotion and therefore violated the ADA, rejecting arguments by the employer that it used the results for vocational, not clinical purposes; note that the EEOC does not consider personality tests that measure traits such as honesty, preference, and habits to be prohibited medical examinations).

The EEOC has issued guidelines on when a medical examination may be given to an incumbent employee. The EEOC states that a medical examination or disability-related inquiry may be made if it is "job related and consistent with business necessity." But this belief must be reasonable and based on objective evidence that an employee's ability to perform the essential functions of the job will be impaired by a medical condition or that the employee will pose a direct threat of harm to himself or to others. What can an employer look to in formulating a reasonable belief? Comments from the employee that are unsolicited, observed problems, or unsolicited information from a third party that is credible.

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