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Requiring Employees to Pay for Follow-Up Medical Exam Violates the Americans with Disabilities Act (ADA)
January 10, 2019

Pre-employment and post-offer medical exams are becoming increasingly more commonplace in the modern workplace. Employers that require these as part of their onboarding processes may learn during such an exam that an applicant has been injured in the past and has experienced pain since. An employer may have concerns about whether the candidate can perform the tasks for which they are being considered. Should these employers require the applicant to take additional medical tests at his or her own expense to determine if he or she can perform a job? According to the Ninth Circuit Court (whose decisions apply to Idaho employers), the answer is “no.”  

On Aug. 29, 2018, in EEOC v. BNSF Railway Co., the Ninth Circuit Court of Appeals held that BNSF Railway Co. violated the ADA by requiring Russell Holt, a prospective employee, to undergo follow-up medical testing for a back injury at his own expense as part of a post-offer medical review, even though three doctors independently found him qualified for the position. BNSF further violated the ADA by revoking its job offer when Holt reported that his insurance would not cover the requested MRI, and he was unable to comply because of the high cost of the MRI. The Ninth Circuit Court affirmed the district court's holding that the employer had violated the ADA but vacated a nationwide injunction issued by the district court against the employer. The Ninth Circuit Court remanded the case for the district court to make factual findings in support of the injunction's scope.

Under the ADA, employer medical inquiries are divided into three categories which include: (1) inquiries conducted prior to the offer of employment; (2) inquiries conducted after the offer of employment, but prior to the start of employment (Holt’s situation); and (3) inquiries conducted on or after the start of employment. Category 2 inquiries need not be concerned solely with an applicant’s ability to perform job-related functions or be consistent with business necessity. However, pursuant to the ADA, employers are still generally prohibited from discriminating against a qualified individual on the basis of disability with respect to job application procedures, hiring and other terms and conditions and privileges of employment.

In the BNSF Railway case, the Court found the employer’s medical inquiry violated the ADA, as all three prongs required for a prima facie violation of the ADA had been met. Regarding the first prong, the Court found that when BNSF required Holt to submit an MRI and conditioned his job on doing so, BNSF perceived Holt as having an impairment that was not transitory or minor. This perception renders the individual “disabled” under the ADA.

Regarding the second prong, the Court found that BNSF discriminated against Holt on the basis of his perceived disability and did so by requiring him to pay for an MRI. The Court stated that this action imposed an additional financial burden on an individual with a perceived impairment that was not imposed on other individuals without any perceived disability.

Regarding the third prong, the fact that Holt was qualified for the position was undisputed by the parties.

Although not specifically required under the ADA, the best practice for requiring a post-offer, pre-employment medical exam is for employers to pay the cost of any follow-up testing deemed necessary to assess a prospective employee's ability to perform the job. While the ADA explicitly allows employers to require a medical examination after an offer of employment and prior to the commencement of the employment duties – and an employer may condition an offer of employment on the results of such examination – employers may not impose additional financial burdens, including costs of a medical exam, on a person with a disability because of that person’s disability. Requiring prospective employees to bear these costs is an invitation for EEOC scrutiny and risks expensive liability for unlawful disability discrimination under the ADA.