For many jobs in the construction industry, the job duties are physical in nature. Because of this, employers may want to use a medical questionnaire or ask an employee to undergo a medical examination.
However, under the American with Disability Act (“ADA”) and Florida law, employers must be careful when asking medical questions or requiring medical examinations.
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- •Pre-Offer of Employment: No medical questions or exams are allowed. Any inquiry that asks about a disability, health condition, medication use, or medical history is strictly prohibited.
- •Post-Offer, but Pre-Employment: After extending a conditional job offer, employers may require medical examinations or ask disability-related questions, but only if everyone in the same job classification is subject to the same requirements.
- •After Employment Begins: Medical inquiries are permitted only if they are job-related and consistent with business necessity. For example, post-employment medical examinations or questionnaires may be employed when a safety concern arises, or an accommodation is requested.
Best Practices to Follow to Minimize Litigation Risk and Align Hiring Practices with Federal and State Law.
- •Equal treatment is essential. After a conditional offer, you may require the completion of a medical questionnaire or examination but may only do so uniformly across all conditional hires in that job classification. You can ask about past injuries, if you do so uniformly.
- •Job relevance and business necessity. Post-hire medical inquiries must be based on objective, job-related concerns, such as actual performance issues or credible risk.
- •Past workers’ compensation claims. You should not ask if someone has previously filed a workers’ compensation claim because it can appear retaliatory or discriminatory at any point in the hiring process.
- •Maintain confidentiality. All medical data must be kept confidential and in separate files.
- Sarah Bachich and Bruce Loren of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mrs. Bachich focuses her practice in employment law. Mr. Loren has achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. Mr. Loren and Mrs. Bachich can be reached at bloren@lorenkeanlaw.com or sbachich@lorenkeanlaw.com or 561-615-5701.
