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Pre-Employment Physicals: Are They Discriminatory?

Date First Published on HR Insider: August 10th, 2007
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Like many employers, you may make job applicants take tests to ensure they’re qualified to perform the duties of the job. For example, maybe you require applicants for a secretarial position to take a typing test. And, in some cases you might want applicants to undergo a physical examination. Pre-employment physicals are certainly appropriate for physically demanding positions such as firefighters. But they also raise tricky legal issues.

A pre-employment physical is a form of discrimination against persons with disabilities. Whether such discrimination is legally acceptable depends in part on why you’re requiring a physical for the position and when in the hiring process you require the applicant to take it. And the complexities don’t end when you get the results of the physical. Rejecting an applicant or withdrawing a job offer because of a condition or ailment that is revealed by the physical, could also lead to liability for disability discrimination.

This article will explain when it is and is not appropriate for employers to make job applicants take pre-employment physicals and provide some do’s and don’ts to keep your testing program within legal bounds.  There’s also Model Language on page X that you can adapt when conditioning a job offer on the applicant’s passing of a physical.

What the Law Says

The human rights laws of each province and territory protect individuals from discrimination because they have a physical or mental disability or handicap (for more information about what constitutes a disability or handicap under human rights laws, see the box on page x). For example, it bars employers from discriminating against people with disabilities when making hiring and other employment decisions. It also requires employers to accommodate applicants or employees with disabilities to allow them the same opportunities as people without disabilities. Accommodation may involve the elimination or modification of policies or requirements that pose barriers to a disabled person.

But employers don’t have to do anything and everything necessary to accommodate an employee. Accommodations aren’t required if they would subject the employer to “undue hardship.” Modifying the requirements of a job might constitute “undue hardship” if those job requirements serve a legitimate business purpose and meet certain criteria that we’ll discuss below.

The Bona Fide Occupational Requirement

The ban against discrimination on the basis of disability isn’t absolute. Employers can implement a policy or impose a job requirement that has the effect of excluding or discriminating against disabled people if it’s what’s called a “bona fide occupational requirement” (BFOR). To qualify as a BFOR, the policy or requirement must be essential to doing the job.

The burden of proving that a policy or requirement is a BFOR falls on the employer. And that’s no small task. According to the Supreme Court of Canada, the employer must prove three things:

  1. The policy or requirement was adopted for a purpose or goal that’s rationally connected to the functions of the position;
  2. The employer adopted the policy or requirement in good faith, in the belief that it was necessary to fulfill that purpose or goal; and
  3. The policy or requirement is reasonably necessary to accomplish the purpose or goal in the sense that the employer can’t accommodate persons who are the subject of the policy or requirement without undue hardship [British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (also known as “the Meiorin case”)].

Applying The Rules To Pre-Employment Physicals

The issue of whether requiring an applicant to take a pre-employment physical is legal thus boils down to one question: Is the applicant’s physical condition or health a BFOR? If so, requiring an applicant to take a physical to determine his condition or health would be appropriate and legal. Thus, if you want to figure out if requiring a physical exam for a position is legal, you must apply the BFOR test described above to the physical requirements for the position. Let’s talk about how to do that:

Rationally connected. The first thing you must do is show that the physical requirements for a position are rationally connected to the position’s duties. That is, you must show:

  • The positions which are subject to certain physical requirements;
  • The duties of those positions;
  • The physical requirements for those positions; and
  • A nexus between the duties and the physical requirements to be tested.

So, for example, requiring applicants to meet certain eyesight standards clearly discriminates against the visually impaired. But that requirement would meet the rationally connected part of the BFOR test if the position is bus driver, for which good eyesight clearly is a BFOR. However, it probably wouldn’t if the position is switchboard operator, for which good eyesight probably isn’t required.

Good faith belief. The next hurdle is to prove that you honestly believe that requiring applicants to meet those physical requirements is necessary. For example, you’d have to explain why you think it’s essential for prospective bus drivers to meet your eye sight standards or for prospective firefighters to meet certain stamina and lifting standards.

Reasonable necessity. The third and toughest part of the BFOR test is to demonstrate that requiring applicants to meet those physical requirements is the only reasonable way to accomplish your goal. Can you accommodate the person and still accomplish your goal? For example, do bus drivers really need perfect eyesight or would a lesser standard suffice? Or would it be acceptable for bus drivers to wear glasses or contact lenses to meet your eyesight requirements? If there are less restrictive standards available that would still ensure the applicant could perform the position’s duties, you need to use them—provided that such standards aren’t an undue hardship.

If the physical requirements for a position meet the above test and thus are a BFOR, then you may require applicants for that position to undergo a pre-employment physical exam to ensure that they meet those requirements.

How To Comply

Now that we’ve explained the law on disability discrimination, BFORs and pre-employment physicals, here are six do’s and don’ts to help you comply with requirements we’ve spelled out.

Notify Applicants in Advance of Physical Requirements of Position

There’s no point interviewing applicants who aren’t physically qualified for the available position. Doing so is a waste of time for both you and the applicant. So let applicants “self select” by telling them in advance if there are any physical requirements for a job opening. So, for example, in an ad for a warehouse employee position, warn applicants that the position involves lifting heavy boxes or operating heavy machinery. Or for a position on an assembly line, note that applicants will be required to stand for extended lengths of time to do the job.

Don’t Require Physicals for All Positions

An applicant’s physical condition is a BFOR for some positions, but not for others. Remember: you should only require a pre-employment physical if some aspect of an applicant’s physical condition is a BFOR. So only require physicals for physically demanding positions, such as firefighters, construction workers and stock room clerks. And don’t require them for, say, lawyers, secretaries, accounts receivable clerks and other desk jobs.

Tailor Physical to BFOR—Not Applicant’s General Health

The goal of a physical isn’t to determine applicants’ overall health—it’s to determine if they’re physically able to do the job for which you’re considering them. So the physical should be tailored to the physical demands of that particular position. For example, if it’s a BFOR for a pilot to have 20-20 vision, you could test the eyesight of applicants for a pilot position, but not their cholesterol or stamina.

Don’t Require Applicants to Have Physicals Before You’ve Made Them Job Offers

Applicants should be considered exclusively on their merits during the interview process for a job opening. So don’t require them to have a physical before you’ve offered them a job. Instead, require a physical after you’ve already determined that the applicant is otherwise qualified for the job and made him an offer. You can then make the job offer conditional on the applicant’s passing the physical. Include language in your job offer that makes it clear that the offer is contingent on the satisfactory results of the applicant’s physical. And have the applicant sign the offer and acknowledge that condition. Here’s Model Language, based on language from the Alberta Human Rights and Citizenship Committee, that you can adapt and use:

Model Language

I understand that a job-related medical examination is required and that the offer of employment is contingent upon a satisfactory job-related medical examination.

Require All Applicants for the Same Position to Have Physicals

If you’ve decided that requiring a physical is appropriate for a particular position, then you must require all applicants to whom you offer that position to have physicals. Don’t waive the physical for a buff 25-year-old male applicant who appears to be physically fit, but insist on it for a 30-year-old chubby female applicant. If you arbitrarily waive the physical requirement for some applicants but not others, you’re leaving yourself and the company vulnerable to discrimination complaints.

Don’t Automatically Withdraw Offer if Physical Reveals a Health Issue

Just because you can require applicants to have physicals after you’ve made them job offers doesn’t mean that you can automatically withdraw those offers if you don’t like the results of their exams. You must be very careful about any actions you take based on the results of applicants’ physicals. For example, you can’t simply withdraw the job offer if the exam reveals that the applicant has, say, epilepsy. Bottom line: You must determine if that condition affects the applicant’s ability to do the job for which you hired him. If not, it’s irrelevant and you may take no actions based on it. If it does, you must also make efforts to accommodate the applicant. Only if the condition would prevent him from doing that job and you’re unable to accommodate the applicant may you withdraw the job offer.

Conclusion

Think carefully before requiring job applicants to have pre-employment physicals. Imposing such a requirement is only justified for positions that are physically demanding and have BFORs that are related to the applicant’s physical condition. And once you have the results of an applicant’s physical, you have to tread carefully before you act on the results.

Show Your Lawyer

British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.), [1999] 3 S.C.R. 3

City of Montréal v. Commission des droits de la personne et des droits de la jeunesse, [2000] 1 S.C.R. 665, Nov. 8, 2000



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