Chapter 5 - § 5.7 • ARE MEDICAL EXAMINATIONS AND INQUIRIES PERMITTED?

• Jurisdiction: Colorado

§ 5.7 • ARE MEDICAL EXAMINATIONS AND INQUIRIES PERMITTED?

The ADA places limits on employment medical examinations⁵ and inquiries. See Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), www.eeoc.gov/policy/docs/guidance-inquiries.html. In addition to this section, see Chapter 14 of this Guide regarding the ADA and medical privacy. Prior to making a job offer to an applicant, an employer may not ask the applicant if he or she has a disability, although the employer may inquire into the applicant's ability to perform job-related functions as long as such questions are not phrased in terms of disability. 42 U.S.C. §§ 12112(d)(2)(A) and (B); 29 C.F.R. Pt. 1630, App. to Pt. 1630 — Interpretive Guidance to Title I of the ADA, § 1630.13(a). If an applicant has a known disability that might interfere with or prevent performance of job functions, the applicant may be asked to describe how these functions will be performed even if other applicants are not asked to do so. If a known disability would not interfere with performance of job functions, however, an applicant may be required to describe or demonstrate how he or she will perform a job only if this is required of all applicants for the position. EEOC Technical Assistance Manual at § V.5.5(a).

After an offer is made, employers may require a medical examination and may condition employment on successful passage of the exam if it is required of all applicants for the position in question and the results are kept confidential (i.e., "collected and maintained on separate forms and in separate medical files"). 42 U.S.C. § 12112(d)(3)(A)-(B). The U.S. District Court for the District of Colorado has held that, after conducting an initial medical examination or inquiry, an employer may require a subset of post-offer applicants to undergo further medical examinations or inquiries, as long as the employer utilizes a uniformly applied process for identifying that subset. Sumler v. Univ. of Colo. Hosp. Auth., No. 16-cv-02557-RM-KLM, 2018 U.S. Dist. LEXIS 178505, at *20-21 (D. Colo. Oct. 17, 2018).

Although a post-offer medical exam or inquiry need not be job related and consistent with business necessity, if an individual is not hired because the exam or inquiry reveals a disability, then the employer must show that (1) the reasons for not hiring the individual were job related and necessary for the business, or (2) no reasonable...