When in the hiring process can we require job applicants to submit to a pre-employment physical exam?

Last Updated: August 1, 2023

Why trust us?

Quick Answer

If a job offer has not been extended, the Americans with Disabilities Act prohibits pre-employment medical examinations, including physical exams. If a conditional offer has been extended, such exams are allowed, but there are important limitations to know. In addition, Title VII bans the use of tests that have the effect of disproportionately excluding people based on a protected class, such as sex.

Legal Perspective

Legal Disclaimer

By Christy Phanthavong, Employment Law Attorney
Bryan Cave Leighton Paisner
Chicago, Illinois

After an applicant has received a conditional offer of employment, says employment law attorney Christy Phanthavong of Bryan Cave Leighton Paisner LLP (christy.phanthavong@bclplaw.com).

At that point, the applicant may be asked disability-related questions and required to undergo a pre-employment medical exam, so long as this is required of all individuals coming on board in the same job category.

Relevant Case Law

EEOC v. Dial Corp.

The Eighth Circuit affirmed a ruling that held an employer’s use of a strength test had a disparate impact on female applicants in violation of Title VII. The EEOC sued on behalf of more than 50 female applicants who were not hired because they could not pass a required strength…

View full case summary

HR Insight

By Tamara Jones, Director of HR
Minnesota Indian Women’s Resource Center
Minneapolis, Minnesota

If we were to require a pre-employment physical, explains Director of HR Tamara Jones, we would require it at the offer stage and state in the offer letter that the offer is pending the results of the pre-employment physical.

By Ruth Bassham, SPHR, SHRM-SCP, HR Consultant
The HR Solution
Weatherford, Texas

First, the test must be valid, meaning the results actually represent what the test is supposed to measure, says HR Consultant Ruth Bassham.

It must also be reliable (provide a consistently accurate measurement), and the measurement criteria must be necessary for successfully performing the essential functions of the job – or for measuring bona fide occupational qualifications; otherwise, the tests may be found to be arbitrary and discriminatory. The EEOC frowns on pre-employment testing unless it can be shown as truly necessary to achieve reasonable employee selection results.

By Haley Burrow, Manager, Talent Acquisitions
Cochlear
Lone Tree, Colorado

I would not want every applicant going through a pre-employment physical, says Haley Burrow, Manager, Talent Acquisitions. I’d have candidates take this physical after interviews have been completed and it had been decided that the applicant would be a good fit for the role.

The Cost of Noncompliance

Here are some real-world examples of what other companies have paid in cases like this.

‘PAT test’ discriminated against women: Walmart pays $20M

Who was involved: Walmart, Inc. and a class of female applicants nationwide.

What happened: Walmart conducted a physical ability test (known as “the PAT”) as a requirement for applicants to be hired as order fillers at Walmart’s grocery distribution centers nationwide. The EEOC said the PAT disproportionately excluded female applicants from jobs as grocery order fillers.

Result: Walmart deposited $20 million into a settlement fund to pay lost wages to women across the U.S. who were denied grocery order filler positions because of the testing. Under the consent decree, Walmart also agreed to stop using all physical ability testing that was used during the hiring process for grocery store filler positions.

Info: Walmart, Inc. to Pay $20 Million to Settle EEOC Nationwide Hiring Discrimination Case, 9/10/20.

Key Takeaways

Under the ADA, a medical examination is any test or procedure that elicits information about an individual’s physical or mental impairments.
The ADA bans medical exams before a job offer has been extended.
If a conditional offer has been made, it’s either subject all or none of the entering employees in the same job category to the exam. Anything else violates the ADA.
Keep exam results in a separate file.
Familiarize the examiner with the job requirements.
If an exam screens out a candidate, employers must show the reason for the rejection is job-related and consistent with business necessity. This means they must reasonably believe based on objective evidence that the job candidate cannot safely and competently do the job.
Exclusions for safety reasons are impermissible unless the individual poses a significant risk of substantial harm.
Neutral tests that disproportionately screen out members of a protected class can violate Title VII.

Edited by