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In EEOC v. BNSF Ry. Co., Case No. 16-35457 (9th Cir. Aug. 29, 2018), the Ninth Circuit held that an employer violates the Americans With Disabilities Act of 1990 ("ADA") by demanding that a job applicant with a perceived disability pay the cost of medical testing prior to being deemed eligible for employment.

The employer offered an applicant a job as a Senior Patrol Officer on the condition that he satisfactorily complete a medical review. During the medical review, the applicant disclosed a prior back injury. The applicant's own doctor and chiropractor, as well as the doctor hired by the employer to conduct the exam, all determined that he had no current limitations due to his back. The employer nonetheless demanded that the applicant undergo and submit the results of an MRI of his back, at his own expense. When the applicant did not obtain an MRI, the employer revoked the job offer. The Equal Employment Opportunity Commission ("EEOC") then sued the employer for violations of the ADA.

The Ninth Circuit recognized that, under the ADA, medical inquiries may occur at three different stages: (1) pre-job offer; (2) post-job offer, but before employment commences; and (3) at any later point. The Court noted that unlike the other two stages, post-job offer/pre-employment medical examinations need not be limited solely to the individual's "ability to perform job-related functions," nor must they be "job-related or consistent with business necessity." Notwithstanding the broader permissible scope, however, the Court held that these examinations cannot violate the ADA's disability prohibitions.

The Ninth Circuit found that the EEOC demonstrated all three elements of a disability discrimination claim under the ADA: (1) that the applicant had a "disability" because the employer perceived him to have a back impairment; (2) that the applicant was qualified for the job; and (3) that the employer impermissibly conditioned the applicant's job offer on the applicant procuring an MRI at his own expense based on its assumption that the applicant had a back impairment.

According to the Court, under the ADA, an employer may not request a medical test at the applicants' cost only from persons with perceived or actual disabilities or impairments. In this situation, the employer is imposing an additional financial burden on a person with a disability because of that person's disability. "Allowing employers to place the burden on people with perceived impairments to pay for follow-up tests would subvert the goal of the ADA to ensure that those with disabilities have 'equality of opportunity,' [citation] and would force people with disabilities to face costly barriers to employment."

The Court's holding applies regardless of the cost of the medical test at issue and regardless of the employee’s ability to pay.

Employer Takeaway

In the post-job offer/pre-employment stage, it is permissible to require follow-up medical exams for applicants with disabilities or impairments. But an employer may not require a prospective employee to pay the cost of the testing, no matter how necessary the testing may be.

Employers should be aware of the ADA's rules governing medical exams at the various stages of hiring and employment. If you have any questions, please contact your Hanson Bridgett attorney.

 

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