When Can an Employer Give a Pre-Employment Physical?

Employee Rights

Strictly speaking, pre-employment examinations are illegal. However, Minnesota law allows employers who have already made an offer of employment to determine the employee’s capability of meeting essential functions of a job. During these examinations, it is vitally important to maintain privacy and medical confidentiality.

Employers’ and employees’ rights in this matter are governed by the Minnesota Human Rights Acts (MHRA), which applies to employers with one or more employees, and the federal Americans with Disabilities Act (ADA), which applies to employers with fifteen or more full-time employees. These two laws are very similar in content and requirements, but this article discusses only the MHRA. The MHRA addresses pre-employment physical exams in Minn. Stat. 363A.20, subd. 8(1)(i-iv), which requires that:

  1. an offer of employment have been made, conditioned only on the results of the subsequent physical examination;
  2. the examination test for essential job-related abilities only; and
  3. the examination be required of all persons conditionally offered employment for the particular position.
  4. the information is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.

If the offer of employment is withdrawn after the examination, the employer must notify the examinee of the medical basis for its decision within 10 days of withdrawal.

It is illegal for employers to withdraw an employment offer because of the applicant’s inability to perform a non-essential function of the job. Also, the employer has a legal duty to make “reasonable accommodation” for a disabled applicant, unless it would cause the employer “undue hardship.”

Reasonable Accomodation

Minnesota Statute 363A.08, subd. 6 suggests that reasonable accommodation for a disability may include, but does not necessarily require

  1. making facilities readily accessible to and usable by disabled persons; and
  2. job restructuring, modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, and the provision of aides on a temporary or periodic basis.

Courts have awarded damages to employees who are able to produce competent evidence that (1) they had a disability, (2) their employer knew of the disability, and (3) their employer failed to make a reasonable accommodation for that disability. Hoover v. Northwest Private Mortgage Banking, 632 N.W.2d 534, 547 (Minn. 2001). A “qualified disabled person” is one “who, with reasonable accommodation, can perform the essential functions required of all applicants for the job in question. Minn. Stat. 363A.03, subd. 36(1).

Undue Hardship

Minnesota Statute 363A.08, subd. 6 gives five factors to consider in determining whether an accommodation would impose an undue hardship on the operation of a business or organization:

  1. the overall size of the business or organization
  2. the type of the operation, including composition and structure of the work force.
  3. the nature and cost of the needed accommodation;
  4. the reasonable ability to finance the accommodation at each site of business; and
  5. documented good faith efforts to explore less restrictive or less expensive alternatives.

An employer is faced with undue hardship when they must hire additional employees, redistribute essential functions to other employees, or “make an overall change in its manner of conducting business” in order to make accommodations for a disabled person. Heaser v. Toro Co., 247 F.3d 826, 832 (8th Cir. 2001); see also Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998).

Written by Lucas Spaeth.

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