A number of federal and state laws protect employees from discrimination and prohibit the employer’s use of discriminatory tests and procedures to select such employees. These laws are imperative to ensure that the rights and interests of citizens are protected. What happens, however, when an employer has no discriminatory intent, but simply needs to determine whether an applicant is physically able to perform the job duties necessary for a particular position?

The answer depends upon the stage of application and employment. Under federal law, an employer’s ability to legally make medical-related inquiries or to require medical examinations is analyzed in three separate stages. The first stage is the “pre-offer phase,” which occurs prior to any offer of employment from the employer. Importantly, the Americans with Disabilities Act (ADA) prohibits disability-related inquiries and medical examinations during the pre-offer phase. The next stage is the “post-offer, pre-employment” phase. At this stage, the employer extends a conditional job offer to the applicant, but the applicant has not yet commenced employment. The final phase is where the employee commences employment with the employer.

The determination of each employment or application stage, as well as the corresponding analysis required for each stage, is extremely fact-specific. The best course of action is adequate consultation and preparation beforehand to ensure that no inquiry or request violates the ADA or any other applicable law.