Employees often transfer from one position within a company to another. And, employers occasionally want to require these employees to undergo a medical examination as part of their transfer just as they would a new-hire. Doing so may run afoul of the Americans With Disabilities Act prohibition against medical inquiries and examinations.
As with many employee-related issues, the answer to whether or not an employer may require a transferring employee to submit to a medical examination is a definite “maybe.”
Under the ADA, an employer can only make certain medical examinations and inquiries, the extent of which depend of the status of the person to whom the request is made. See 42 U.S.C. § 12112(d) (2015). During the initial application process [“pre-offer stage”], the employer cannot request medical examinations or inquiries into whether the person has a disability and it may only inquire about the applicant’s ability to perform job-related functions. Id. at § 12112(d)(2).
After the employer extends an applicant an offer but before the applicant begins work [“post-offer stage”], the field is wide-open and the employer may essentially make whatever inquiries and requests it would like, subject to a limitations. Id. at § 12112(d)(3). (This is not to say that employers should take advantage of this ability. Remember, once you possess knowledge about an employee’s disability, the employer is essentially tainted with that knowledge forever, giving the employee the ready-made claim of disability discrimination if he is ever subjected to discipline.)
Once the applicant begins work, he becomes an “employee” under the act, and the employer may only make requests for examination and medical inquiries if they are “job-related and consistent with business necessity.” Id. at § 12112(d)(4).
A. The EEOC’s Guidance
The EEOC has stated that a current employee’s status when transferring positions depends on the nature of the transfer. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA), § 4 available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html. According to the EEOC, “[a]n employer should treat an employee who applies for a new job as an applicant for the new job.” This would place the employee either in the pre-offer stage or in the post-offer, pre-employment stage depending on whether the employer has extended an actual offer for the position. This would allow the employer to require the employee to submit to medical examinations and require him to answer medical inquiries.
On the other hand, the Guidance provides that if the applicant “is noncompetitively entitled to another position with the same employer (e.g., because of seniority or satisfactory performance in his/her current position),” the individual is not and applicant and remains in his or her employee status.
Several courts have applied the EEOC’s Guidance to cases addressing the application of improper medical examinations, allowing the employer to require medical examinations of employees competitively applying for new positions. However, several other courts have simply analyzed whether the employee at question was continuously employed regardless of the competitive nature of the transfer process and found that similar medical examinations violated the ADA. Essentially holding that requiring a medical examination was improper regardless of whether or not the transfer was competitive or an entitlement so long as the employee’s employer did not change.
Like many other employee-related issues, there appears to be no safe answer to this question. Employers wishing to require employees to submit to medical examinations when they transfer from one position to another should do so very carefully, keeping in mind that doing so may violate the ADA.