Recently, the Equal Employment Opportunity Commission (“EEOC”) has focused on filing lawsuits relating to an employer’s obligations under the Americans with Disabilities Act (“ADA”) when using pre-employment medical exams. During the month of September, the EEOC filed suit against Huntington Ingalls Industries in the U.S. District Court for the Eastern District of Virginia,* and against Consolidated Edison Company of New York, Inc. in the U.S. District Court for the Southern District of New York.**

These cases concern different aspects of the ADA’s requirements:

• Huntington Ingalls focuses on providing an accommodation during the medical exam itself;

• Consolidated Edison relates to the use of a medical exam to deny employment.

The EEOC’s growing interest in this area of law makes clear that employers would do well to revisit their obligations under the ADA.

Employers often make use of pre-employment medical exams to determine an applicant’s suitability for employment. Employers should take caution, however, because their obligations under the ADA differ based on the stage of the employment process.***

First, an employer is prohibited from requiring an applicant to undergo a medical examination prior to an offer of employment, even if the examination is job-related. The employer may conduct a medical exam after the employer has extended the individual a contingent offer of employment – regardless of whether the exam or inquiry is related to the job in question – so long as the employer does so for all prospective employees in that particular job category.  Critically, an employer can only revoke an offer of employment based on the results of a medical examination if the reasons for the revocation are “job-related and consistent with business necessity.”

Employers should exercise caution when seeking to revoke an offer of employment based on the results of a medical examination, as a misstep can create legal liability. When doing so, employers should be able to (1) provide evidence that all applicants in the job category in question are subject to examination; and (2) explain, with documentation, the specific ways in which revocation of the offer is job-related and consistent with business necessity (i.e. the individual is unable to perform the essential job functions or he or she poses a “direct threat” to himself, herself, or others). 

With the EEOC’s increased focus on such cases, employers would be wise to review their medical examination procedures to ensure they comply with the ADA.  Failure to do so could result in costly and protracted litigation. 

* U.S. Equal Opportunity Employment Commission v. Huntington Ingalls Industries, Civil Action No. 4:17-cv-00113 (E.D. Va. 2017).

** U.S. Equal Opportunity Employment Commission v. Consolidated Edison Co. of New York, Inc., Civil Action No. 17-cv-7390 (S.D.N.Y. 2017).

*** See generally 29 CFR § 16430 et seq.