Question: We currently contract with a temporary employment agency for workers and will hire some of these workers after 90 days of successful work. We require all new regular employees for production and maintenance positions to undergo a pre-employment (post-offer) medical test. When we offer regular jobs to the temp agency employees, can we require them to undergo this same medical exam—even though they’ve already been working on-site for the past 90 days?
Answer: Yes, but what good does it do to wait until after they’ve already been successfully performing the job duties for three months? If the exam is truly necessary to ensure the health and safety of the people on the job, then it should be conducted before they begin doing the work.
Requiring a post-offer medical exam could, in fact, cause complications. For example, if a post-offer medical exam has an adverse impact on individuals with disabilities, then the Americans with Disabilities Act (ADA) requires you to show the exam is job-related and consistent with business necessity. That’s hard to do if the temporary worker was doing well in the job without the exam. If a disability causes the employee to fail the exam, you must engage in an interactive process to determine if there is a reasonable accommodation that will permit the person to perform the essential functions of the job. You and the temporary agency may negotiate to determine who is responsible for administering the exam. Just make sure the exam is job-related and that a procedure is in place to evaluate reasonable accommodations for individuals with disabilities.
Risk of Disability Discrimination: A Word of Caution
Recently, a federal court of appeals agreed an employee who worked as a temp agency employee for a company as a general production worker for five months should have his ADA claims of discriminatory termination, discriminatory failure to hire, and failure to accommodate heard in court when the company didn’t hire him into a regular position following failure of a pre-employment (post-offer) medical exam. Although the test was required of all new employees, the court determined it was a question for the jury whether the temporary employee had been performing the essential duties of the position with a reasonable accommodation for a portion of the five months (Iselin v. The Bama Companies, Inc., 10th Cir, May 2017).