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Top 5 Tips for Conducting Pre-Employment Medical Exams - (10/27/2017)
United States-

n a recently filed lawsuit, the U.S. Equal Employment Opportunity Commission contends that Consolidated Edison Co. (“Con Ed”) violated the Americans with Disabilities Act (“ADA”) and the Genetic Information Non-Discrimination Act of 2008 (“GINA”) by its use of pre-employment medical examinations. According to the Complaint, Con Ed required applicants to submit to pre-employment medical examinations in which the company improperly sought disclosure of genetic information and used this information in deciding whether to hire certain applicants.

Employers should be aware of the following general requirements under the ADA and GINA:

The ADA prohibits all disability-related inquiries and medical examination prior to a valid offer of employment
If a valid conditional offer of employment has been issued, the ADA allows an employer to make disability-related inquires and conduct medical examinations as long as it does so for all entering employees in the same job category
Once employment begins, the ADA only permits an employer to make disability-related inquiries and require medical examinations if they are job-related and consistent with business necessity (see guidance by clicking here)
GINA prohibits employers from requesting genetic information about applicants, such as family medical history, during the course of any pre-employment medical examination; and
GINA prohibits employers from using genetic information in making employment decisions, such as hiring, firing, promotions and compensation (see guidance by clicking here)
Employers found to have violated the ADA and/or GINA could be liable to aggrieved applicants and employees for back pay, compensation for economic losses, emotional pain and suffering, punitive damages, and attorneys’ fees. Consequently, employers are encouraged to review their hiring procedures and contact counsel with any compliance question that may arise.

Jackson Lewis PC - Desiree M. Gargano

© 2014 Jackson Lewis P.C. Reprinted with permission. Originally published at Jackson Lewis is a national workplace law firm with offices nationwide.

This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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