What are the compliance issues involved in conducting pre-employment physical examinations?

There could be both state and federal laws to consider. Employers covered under the federal American's with Disabilities Act (ADA) may only require a physical examination after a contingent offer of employment has been made. In addition, physical examinations can be required only if the following conditions are met:

• All other candidates in the job category are also required to have a physical examination.
• The candidate's medical history is treated confidentially and is kept separate from other employment-related records.
• The results of the examination are not used to discriminate against persons covered by the ADA.

A physical exam should assess whether the person is currently able to perform the duties of a job with or without accommodation. To make this assessment, the medical practitioner who conducts the examination must have a clear understanding of the job duties and conditions. Only job-related physical attributes or conditions should be examined.

Contingent offers of employment may be withdrawn based on the results of a physical examination if the reason for withdrawing the offer is job-related, is consistent with business necessity or is imperative to avoid a direct threat to health or safety. Contingent offers may also be withdrawn if (a) there is no reasonable accommodation that the employer could make to allow the person to perform the job, or (b) providing the needed accommodation would cause undue hardship. Offers of employment cannot be legally withdrawn because of speculation about a person's future attendance or use of benefits.

State antidiscrimination laws may also apply, so employers should check with their attorney for compliance.