• The examination or inquiry is job-related and consistent with business necessity; and
• All entering employees in the same job classification are subject to the same examination or inquiry.

California’s disability regulations state that an employer may condition a bona fide job offer on medical examination results to determine fitness for the particular job. To be a “bona fide job offer,” the employer must have completed all non-medical components of the application process, or demonstrate that it could not reasonably have done so prior to the offer.2 Additionally:

• All entering employees in similar positions must be subject to similar examinations;
• Where the examination results would lead to an applicant’s disqualification for employment, the applicant must have the opportunity to submit independent medical opinions for consideration; and
• The results of any medical examinations must be maintained in a separate confidential medical file.

The timing of a medical examination is important. In one case, an employer made conditional offers of employment, contingent upon passing background checks and medical examinations. Rather than wait for the background checks, the employer immediately sent the applicants for medical examinations, during which the applicants failed to disclose HIV-positive status or related medications. When the company discovered the applicants’ HIV-positive status, the company rescinded the job offers, citing the applicants’ failure to disclose information during their medical examinations.

The applicants sued in federal court, alleging that the ADA and FEHA prohibit the company from requiring medical information disclosure until the medical examination remained the only contingency. They also said the company violated their right to privacy under the California Constitution by conducting complete blood count tests without notifying them or obtaining their consent. The Ninth Circuit Court of Appeals agreed that the applicants were entitled to present the issues at a trial.3

Withdrawing an Offer

An employer may withdraw an employment offer only if medical or psychological examination results indicate the applicant is unable to perform the essential job functions or would endanger workplace health or safety, with or without reasonable accommodation.4

Applicant Can’t Be Forced to Pay for Medical Exam

The Ninth Circuit held that an employer violated the ADA when it required a job applicant with a history of back problems to pay for an expensive medical exam — and then revoked his job offer when he refused.5

The court noted that the ADA allows for post-offer medical testing when consistently applied to all applicants, but an employer shouldn’t single out people with perceived disabilities and force them to bear the cost of that testing. Placing the financial burden on the job applicant with an actual or perceived disability is “at odds with the ADA’s aim to increase opportunities for persons with disabilities,” said the court.

After applying for a position, the applicant received a conditional job offer contingent on him satisfactory completing of a post-offer medical review — during which he disclosed a prior back injury. The applicant’s health care providers and a doctor hired by the employer all determined that the applicant had no current job limitations and didn’t require any follow up tests.

Despite these medical opinions, the employer required the applicant to obtain an MRI at his own cost and if he didn’t, the employer would consider the applicant to have declined the job offer. The applicant couldn’t afford to pay for the exam and the employer designated him as having declined the conditional job offer.

The federal EEOC sued on behalf of the applicant. The case turned on two issues: whether the applicant had a disability under the ADA and whether the employer discriminated against him because of it.

The Ninth Circuit held that the employer perceived the applicant as being disabled and discriminated against the applicant on the basis of that perceived disability. The court held that requiring an applicant with a perceived disability to pay for an MRI or lose a job offer “is a condition of employment imposed discriminatorily on a person with a perceived impairment.” In addition, because MRIs are indisputably expensive, requiring an MRI as a pre-condition to employment will both disqualify many applicants and “subvert the goal of the ADA” to ensure equal employment opportunity to those with disabilities.

The court pointed out that elsewhere in the statue, the ADA puts the financial burden on employers — such as requiring that employers pay for an employee’s reasonable accommodation unless there’s an undue hardship. Furthermore, “[p]utting the burden to pay on employers helps to ensure that employers don’t abuse their power to require testing at the post-offer, pre-employment stage.”

This case was decided under the federal ADA, which is unclear about who should bear the cost of the medical exam. In California, however, it’s clear that employers can’t require prospective employees to pay for any type of medical or physical examination required for employment or by federal, state or local law.6

1. Govt. Code sec. 12940(e)

2. 2 CCR sec. 11071(b)

3. Leonel v. American Airlines, Inc., 400 F.3d 702 (9th Cir. 2005)

4. 2 CCR sec. 11071(c)

5. Equal Employment Opportunity Commission v. BNSF Railway Company, 902 F.3d 916 (2018)

6. Lab. Code sec. 222.5