Medical Examinations for Applicants -- Penske Takes It on the Chin

The Department of Fair Employment and Housing ("DFEH") has announced a $450,000 settlement with Penske Logistics on behalf of 13 delivery drivers.  Penske took over delivery of the Fresno Bee when the newspaper outsourced that job.  Drivers who had been working for the Fresno Bee for years were required to apply for a job with Penske if they wished to continue working. 

Penske then compelled the driver-applicants to submit to medical examinations.  Even though they had been performing the job competently for years, the 13 drivers did not receive satisfactory scores on their examinations.  Thus they were not hired by Penske. 

According to the DFEH, Penske asked drivers to disclose non job-related physical conditions.  Penske also asked other specific medical questions such as whether applicants had diabetes or high blood pressure.  Applicants were further required to show their ability to achieve a "medium-heavy" strength rating, even though these drivers' duties did not include strength activities of this level. 

This case illustrates important points for employers.  First, don't make medical inquiries that are unrelated to job performance.  Asking general questions such as "Describe your medical conditions" is not an appropriate question. 

Second, when designing a  test to determine whether or not an applicant can perform job duties, make sure those tests relate to the job duties.  This is where employers should partner with a competent medical facility to design tests that mimic the activities of the job.  Whether the information is gathered in question format or by performing agility or physical tests, make sure the information is relevant to job duties. 

I often see a third issue arise whenever an employer has an applicant provide medical information.  The medical facility may provide the employer with the applicant's entire file.  It may include information such as an applicant's general medical history.  It may disclose a condition that has no bearing on the applicant's ability to perform. 

Once the employer has this information in its possession, it is difficult to argue that a decision not to hire the applicant was unrelated to the information in the medical file.  What employers should do is ask the medical provider to answer whether or not the applicant can perform the job duties.  If the applicant cannot, then ask the medical facility to identify what accommodations might allow the employee to perform the job.  In this way, by obtaining limited information, the employer has a lesser risk of facing a lawsuit related to improper medical inquiries.