Public Health Law Map - Beta 5 - Medical and Public Health Law Site

course. In these cases, the question of whether the individual plaintiff need show an
effect of the disease is very relevant. The Court gives no guidance on this very
difficult issue. (Although not discussed by any judge, the converse problem is also
possible: if the standard is a generic one, what happens to a plaintiff who is
personally disabled by a condition that usually does not disable others.)
I. Preemployment Medical Examinations
The ADA bifurcates the hiring process into the preoffer stage and the postoffer stage
when there has been an offer of employment. At the preoffer stage, with certain
exceptions for mandated affirmative action recordkeeping, “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” (sec. 1630.13(a)).
The employer may ask the applicant if he or she is able to do the job and may require
job-oriented skills tests. The employer must provide any reasonable accommodations
that the applicant requires to complete these tests.
1. Allowable Examinations
A covered entity may require a medical examination after an offer of employment
has been made to an applicant and prior to the commencement of the employment
duties of such applicant, and may condition an offer of employment on the results of
such examination, if
1. all entering employees are subjected to such an examination regardless of
disability;
2. information obtained regarding the medical condition or history of the applicant is
collected and maintained on separate forms and in separate medical files and is
treated as a confidential medical record.
2. Preemployment Examination Records
Maintaining employee medical examination records as separate, confidential medical
records is a fundamental change from the practices in most workplaces. This appears
to preempt directly the OSHA requirement that medical information from
preemployment evaluations be maintained with the occupational medical record. The
employer and its agents have only limited access to such information:
supervisors and managers may be informed regarding necessary restrictions
on the work or duties of the employee and necessary accommodations;
first aid and safety personnel may be informed, when appropriate, if the
disability might require emergency treatment;
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