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There are few hard and fast rules about whether a particular test is legal -- courts generally decide these issues on a case-by-case basis, looking at all the facts and circumstances. For the most part, employers can stay out of trouble by using simple common sense. An employer who inquires into an employee's sex life or personal beliefs probably crosses the line, while an employer who tests only for necessary job skills is probably on safe ground.
In addition to these general considerations, specific rules apply to particular types of tests.
Medical Examinations
The Americans With Disabilities Act (ADA) limits an employer's ability to administer medical tests that might unfairly screen out workers with disabilities. Employers can require a medical examination only after a job offer has been made, for example.
In addition, the ADA cloaks the results of a medical examination with certain privacy protections. Data gathered in medical examinations must be kept in a separate file available only to those with a demonstrable "need to know." (See Who Has a Right to View Personnel Files? for more information on record-keeping requirements.)
Once an employee is already on the job, an employer's right to conduct a medical examination is usually limited to so-called "fitness for duty" situations. Where an employee has exhibited objective indications that he or she is physically or mentally unfit to perform the essential functions of the job, an employer may ask about the employee's condition or request that the employee take a medical examination.
| ADA Resource |
| You can find lots of information about the ADA's rules for medical examinations of current employees in the Equal Employment Opportunity Commission's policy guidance on the subject, "Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees Under the Americans With Disabilities Act (ADA)," available at www.eeoc.gov. |
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