Privacy Issues in the Workplace

 “How serious is your medical condition?

 “Have you ever been treated for any of the following diseases and conditions?”

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“Do you take any medication?”

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“How did you become disabled?”

 “Are you now receiving or have you ever received Workers’ Compensation?”

 “How often will you need to get treatment?” 152

6. P HYSICAL A GILITY /F ITNESS T ESTING Under the ADA and the FEHA, applicants may be required to undergo physical agility/fitness testing if it is directly related to job performance and is consistent with a business necessity. 153 For many public employees, physical fitness is not a consideration. But, in some cases, particularly in the case of safety employees (e.g., police and fire), physical fitness is an important consideration. In such cases, physical agility testing may be appropriate. Although medical inquiries are not permitted until after a conditional offer has been made, an employer may ask an employee to have a physician certify whether he or she can safely perform a required physical agility test. 154 The applicant may obtain a note stating that he or she can safely perform the test, or explain the reasons why he or she cannot perform the test. 155 The employer is not entitled to review the applicant’s entire medical file or obtain medical information not affecting the ability of the applicant to perform the test safely. 156

LCW Practice Advisor

 Tests that measure the applicant’s physiological or biological responses would constitute a prohibited medical examination because they measure the body’s physiological response as opposed to measuring the applicant’s ability to perform certain tasks  Since an employer cannot inquire about an applicant’s medical background prior to making a conditional offer of employment, an employer who is administering a physical agility/fitness exam should strongly consider advising participants of the components of the exam and the physical stresses involved before the exam is administered. By doing so, an employer may avoid or reduce liability where an applicant injures himself or herself in the course of physical fitness/agility testing.

Privacy Issues in the Workplace ©2019 (s) Liebert Cassidy Whitmore 56