Physical Examination by Positively Fit
- For more information, see When Can an Employer Give a Pre-Employment Physical?
A Minnesota employer may require an applicant, as a condition of hire, to submit to a pre- employment physical exam, which may include a medical history, if:
- The applicant (except for certain peace officer applicants) has first received an offer of employment contingent only upon passing the physical;
- The physical examination tests only for essential job-related abilities; and
- The physical is required of all persons conditionally offered employment for the same position, regardless of disability (except for examinations authorized under Minnesota’s workers’ compensation law).33
The physical may include a drug or alcohol test if the requirements of the Minnesota drug testing statute (discussed below) are followed.
An employer may not refuse to employ an applicant due to physical inability to perform the job unless the applicant is unable to perform the essential functions of the job. Certain employers also have an obligation to explore whether they can “reasonably accommodate” the applicant to enable him or her to perform the essential functions of the job. “Reasonable accommodation” is required of any employer who employs 15 or more permanent full-time employees unless the employer can demonstrate that accommodation would impose an undue hardship on the company.34 “Reasonable accommodation” means steps which must be taken to accommodate the known physical or mental limitations of a qualified disabled person.
An employer in Minnesota may ask an applicant whether he or she has a physical condition which could prevent the applicant from performing the job for which he or she is applying only as part of a pre-employment physical, after a conditional job offer has been made, and as part of the medical history which is part of that pre-employment physical. Note that all medical information must be collected and maintained on separate medical forms and in separate medical files, to be treated as confidential medical records, not as part of the employee’s personnel file.
If the applicant undergoes a pre-employment physical and a physician determines that the applicant is unable to perform the job in question even with reasonable accommodation (if required), the employer must notify the applicant of that information within ten days of the final decision not to hire.35
Note that in addition to protecting applicants who actually have physical, mental or sensory impairments, Minnesota law also protects applicants who have a record of having such an impairment or who are perceived as having such an impairment against discrimination based on disability.
Under the Americans with Disabilities Act (“ADA”), consistent with Minnesota law, employers may not make any medical inquiries or submit applicants to any medical examinations before a conditional offer of employment is made, and the medical examination must be required of all persons conditionally offered employment for the same position. Unlike Minnesota law, under the ADA employers may perform medical examinations that are not job-related and may make unrestricted medical inquiries as long as the responses to those inquiries are not used to reject an applicant for reasons that are not job-related or consistent with business necessity. This approach, even though acceptable under the ADA, is not allowed under Minnesota law. Therefore, Minnesota employers should only perform medical examinations that test for job-related abilities.
CREDITS: This post is an excerpt from An Employer’s Guide to Employment Law Issues in Minnesota, originally produced through a collaborative effort between the Minnesota Department of Employment and Economic Development and Lindquist & Vennum, P.L.L.P.
This post is part of a series of posts on hiring an employee in Minnesota.
33. Minn. Stat. § 363A.20, subd. 8(a)(1) (2007).
34. Minn. Stat § 363A.08, subd. 6 (2007).
35. Minn. Stat § 363A.20, subd. 8(c) (2007).
36. Minn. Stat § 181.951, subd. 2 (2007).