EEOC Revises Policy on Medical Examinations Under ADA

In October 1995, the Equal Employment Opportunity Commission (EEOC) released final enforcement guidance on Preemployment Disability-Related Questions and Medical Examinations, which includes criteria for determining whether psychological tests are medical examinations. This guidance, which is part of the 1990 Americans With Disabilities Act (ADA), replaces EEOC guidance released in 1994.

Under ADA, employers cannot ask job applicants disability-related questions or conduct medical examinations until they have extended a conditional job offer. This is to 'help ensure that an applicantūs possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant's nonmedical qualifications.' Employers can only inquire about an applicant's ability to perform specific job tasks and nonmedical qualifications at the preoffer stage. Once a conditional offer has been made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category. If the inquiry or medical examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is 'job-related and consistent with business necessity.'

As did the 1994 enforcement guidance, the 1995 guidance addresses psychological testing and whether psychological tests are medical examinations. Although the October guidance is similar to the previous version, it is more succinct. The criteria for determining if a psychological test is medical are similar to those in the May 1994 policy: Is the test administered by a health care professional or someone trained by a health care professional? Are the results interpreted by a health care professional or someone trained by a health care professional? Is the test designed to reveal an impairment of physical or mental health? Is the employer trying to determine the applicant's physical or mental health or impairments? Is the test invasive (e.g., does it require the drawing of blood, urine, or breath)? Does the test measure an applicant's performance on a task, or does it measure the applicantūs physiological responses to performing the task? Is the test normally given in a medical setting? Is medical equipment used?

The policy notes that, 'in many cases, a combinatin of factors will be relevant in figuring out whether a procedure or test is a medical examination,' but in some cases, 'one factor may be enough to determine that a procedure is medical.'

Further clarification on psychological tests is offered:

Example: A psychological test is designed to reveal mental illness, but a particular employer says it does not give the test to disclose mental illness (e.g., the employer says it uses the test to disclose just tastes and habits). But the test also is interpreted by a psychologist and is routinely used in a clinical setting to provide evidence that would lead an applicant to a diagnosis of a mental disorder or impairment (e.g., whether an applicant has paranoid tendencies or is depressed). Under these facts, this test is a medical examination.

May an employer give psychological examinations to applicants?

Yes, unless the particular examination is medical. This determination would be based on some of the factors listed above, such as the purpose of the test and the intent of the employer in giving the test. Psychological tests are medical if they provide evidence that would lead to identifying a mental disorder or impairment (e.g., those listed in the American Psychiatric Association's most recent Diagnostic and Statistical Manual of Mental Disorders [DSM]).

This focus on diagnosis may help to distinguish between personality tests, which are allowed, and psychological tests, which might be labeled medical under the law and would, therefore, need to be administered postoffer. For a copy of the policy, contact EEOC at (202) 663-4900.

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