Privacy Issues in the Workplace

jobs, unlike applicants. 168 Thus, the general rule is that an employer may not inquire about an existing employee’s medical condition or require a current employee to undergo a medical examination. 169 However, there are two primary exceptions: 1) to carry out a legal obligation, such as determining the availability of a reasonable accommodation; and 2) for other nondiscriminatory, legitimate business reasons, such as determining an employee’s fitness for duty. Like pre-employment medical exams, exams of existing employees must also meet the job-related and consistent with business necessity requirements. 170 Appendix S of this workbook provides a sample letter to a medical doctor for a fitness for duty examination. F. D ENIAL OF E MPLOYMENT B ASED ON M EDICAL E XAMINATION R ESULTS If an employer disqualifies an applicant based on a medical examination, the employer must show that: 1) the reasons for disqualification were job-related and consistent with business necessity; and 2) no reasonable accommodation was available. 171 (See Section G1 regarding Reasonable Accommodation). An employer must engage in an interactive reasonable accommodation discussion to determine if a reasonable accommodation exists. If the results of a medical examination result in disqualification, an applicant may submit an independent medical opinion for consideration before a final determination on disqualification is made. 172 1. E MPLOYERS M AY R EJECT A PPLICANTS W HOSE J OB P ERFORMANCE W OULD E NDANGER THE A PPLICANT OR O THERS The FEHA and the ADA have similar but distinct tests regarding the rejection of applicants whose medical condition or disability endangers the applicant or others. a. The ADA “Direct Threat” Test Under the ADA, an employer may refuse to hire an applicant who poses a direct threat to the health or safety of the applicant or other individuals in the workplace. “Direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” should be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:



The duration of the risk;

 The nature and severity of the potential harm;

 The likelihood that the potential harm will occur; and

 The imminence of the potential harm.

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