To: Department and Agency Personnel/Affirmative Action Officers
From: Candice T. Carter, Executive Deputy Commissioner
Subject: AMERICANS WITH DISABILITIES ACT: Medical Examinations
Title I of the Americans with Disabilities Act (ADA) prohibits employment discrimination on the basis of disability. The Act applies to all aspects of the employment process, including: application, testing, hiring, assignments, evaluation, disciplinary actions, training, promotion, medical examinations, layoff/recall, termination, compensation and leave. As of July 26, 1992, Title I is applicable to all employers of 25 or more employees, including the State and local governments.
The federal Equal Employment Opportunity Commission (EEOC) is responsible for enforcement of Title I and has issued implementing regulations as well as a Technical Assistance Manual to aid covered entities in complying with the ADA. Agencies are urged to consult the Technical Assistance Manual for guidance on compliance with Title I. Copies of the Manual are available by calling the EEOC at 1-800-669-EEOC (voice) or 1-800-800-3302 (fDD) or by writing to:
One of the ADA's most significant provisions is the prohibition of any pre-employment inquiries about a disability. This prohibition is necessary to assure that qualified candidates are not screened out because of their disability before their actual ability to do a job is evaluated. The Act provides that an employer may not require a job applicant to take a medical examination before the employer makes a job offer. An employer may, however, condition a job offer on the satisfactory result of a post-offer medical examination or medical inquiry if such is required of all entering employees in the same job category. Agencies should note that candidates who have been extended conditional offers of employment should not be permitted to start work until the results of the post-offer medical examination are known.
If an individual is not hired because a post-offer medical examination reveals a disability, the reason for not hiring must be job-related and consistent with business necessity. The employer must also show that no reasonable accommodation was available that would enable the individual to perform the essential job functions, or that the accommodation would impose an undue hardship.
With respect to the role of the individual or entity such as the Employee Health Service which conducts post-offer medical examinations, the EEOC's Technical Assistance Manual states:
"A doctor who conducts medical examinations for an employer should not be responsible for making employment decisions or deciding whether or not it is possible to make a reasonable accommodation for a person with a disability. That responsibility lies with the employer."
To ensure compliance with the ADA, the Employee Health Service will no longer schedule physical/medical examinations without written confirmation from the agency that the subject candidate has received a conditional offer of employment. This confirmation must accompany the agency's written request to the Employee Health Service to schedule an examination and must include the candidate's name, social security number, title, applicable civil service eligible list number or reemployment list type and anticipated employment status.
As in the past, the Employee Health Service will evaluate candidates against the announced physical/medical standards that have been developed based upon the definition of the job tasks and associated working conditions as defined by the agency. As such, all existing physical/medical standards should be carefully reviewed by the agency to ensure that they are job related and consistent with business necessity. Agencies are urged to review section 2620(G) of the State Personnel Management Manual for a complete description of the procedure for the development of physical and medical standards and their responsibilities in that process.
The Employee Health Service will notify both the candidate and the agency of the result of the medical examination.
Candidates meeting the announced physical/medical standards will simply be told that they have satisfactorily completed the medical examination. The agency will then be responsible for notifying these candidates when they should report for work.
Candidates not meeting the announced standards will be notified of the specific disability or limitation identified by the examination and the standard that was not met. The Employee Health Service's notice to the candidate and the agency will also advise candidates of their right to submit to the Employee Health Service facts in opposition to the Employee Health Service determination that they do not meet the applicable physical/medical standard.
The Employee Health Service, however, cannot and will not make any determination as to whether it is possible for the agency to make a reasonable accommodation. That determination must be made by the agency. Accordingly, the Employee Health Service's notice to candidates who do not meet the physical/medical standards will advise those candidates that they should contact their appointing authority to determine their employment status.
Agencies should notify candidates not meeting the announced physical/medical standards, who do not request a reasonable accommodation or for whom the agency cannot provide a requested accommodation, that their conditional offer of employment has been withdrawn. A copy of the notice should be sent to the Department of Civil Service, Employment Records Section.
Agencies are advised that under the ADA, information from all medical examinations and inquiries, including notice of the post-offer of employment medical examination results from the Employee Health Service, must be kept apart from general personnel files as a separate, confidential medical record. The EEOC's Technical Assistance Manual suggests that employers keep medical information in a medical file in a separate, locked cabinet, apart from the location of personnel files and designate a specific person or persons to have access to the medical file.
The Employee Health Service will make every effort to assist agencies in the development and documentation of physical/medical standards and to schedule candidates for examinations as quickly as possible.
Questions concerning this memorandum should be directed to the Employee Health Service at 457-6142.