Time to reassess your preemployment testing practices?

After extending a conditional offer of employment, many employers require prospective employees to undergo medical examinations to assess their "fitness for duty." Problems may arise, however, when an employer decides to rescind a job offer based on information obtained during the medical examination. A Florida employer recently learned that lesson the hard way after battling with the Equal Employment Opportunity Commission (EEOC) over a conditional offer medical exam.


American Tool & Mold (ATM) custom designs and manufactures molds for plastic parts. In October 2009, ATM's general manager recruited Michael Matanic for a process engineer position and eventually extended him a job offer. The company conditioned his employment on a medical exam.

In November 2009, Matanic went to a medical clinic for his preemployment medical exam. All prospective ATM employees, regardless of the position they were being hired for, were scheduled for a back screening and a lifting test. Before his exam, Matanic disclosed on a medical form that he sustained a back injury in 2003 for which he had surgery.

In light of that information, the clinic didn't proceed with the back screening or lifting test. Instead, the clinic completed a physical examination form assessing Matanic as "not fit for employment/work" absent a review of the medical documentation from his back surgery and a statement of restrictions from the physician who performed the surgery.

Termination and EEOC charge

Matanic provided the clinic with a release for his 2003 surgical records, and ATM permitted him to start work on a conditional basis. In January 2010, however, the company terminated his employment because the clinic didn't receive the requested medical documentation.

Matanic filed a charge of disability discrimination with the EEOC, and the agency found "reasonable cause" that discrimination had occurred. It filed a lawsuit on Matanic's behalf in federal court in Tampa alleging that ATM violated the ADA in its handling of his preemployment physical examination. The agency then filed a request for summary judgment with the court, essentially asking the court to rule in its favor on the ADA liability issues.

The EEOC argued that ATM regarded Matanic as disabled after he disclosed his 2003 back surgery. The company countered that it simply didn't have the information necessary to ascertain his level of physical ability and therefore couldn't deem him fit for duty. The court agreed with the EEOC, holding that ATM violated the ADA by regarding Matanic as disabled.

Victory for EEOC and Matanic

The court noted that the only reason ATM sought Matanic's medical records was because he disclosed a 2003 back surgery. By requiring him to produce documentation from his physician, the company essentially turned the tables on Matanic, asking him to prove that he was not disabled.

The court highlighted the fact that "ATM did not even undertake to conduct an examination to verify any residual problems from the prior medical intervention." Instead, the company assumed that Matanic's 2003 back surgery would put him at risk of further injury and would put it at risk of potential liability. It was that assumption that got ATM into trouble.

Individualized determinations required under ADA

The court recognized that under certain circumstances, employers may subject a prospective employee to a medical examination after extending a conditional offer of employment. But if prospective employees with disabilities are screened out as a result of the examination, the exclusionary criteria must be job-related and consistent with business necessity. Under that standard, the employer must make an individualized determination that the prospective employee's impairment would preclude him from performing the essential job functions.

ATM withdrew Matanic's job offer without making any individualized determination that he couldn't perform his essential job functions. The company just assumed that he couldn't perform the job. In fact, the evidence demonstrated that ATM didn't provide the medical clinic with a job description, and the clinic wasn't even aware of the process engineer's job duties. The court held that ATM couldn't avoid its obligation to evaluate Matanic's actual ability to perform the job "by blindly relying" on the medical clinic's assessment, particularly because the clinic wasn't in a position to perform any individualized assessment.

As for ATM's request that Matanic produce his 2003 medical records, the court concluded that the company requested the information merely to dispel its fear of workers' compensation claims or future injuries. According to the court, "neither of those are permissible justifications under the ADA" when the prospective employee is currently able to perform the essential job functions.

Lastly, the court rejected ATM's argument that hiring Matanic would have posed a direct threat to his own safety or the safety of others. Without an individualized assessment, said the court, "ATM cannot rely on myths and fears regarding whether a back surgery performed years earlier might place ATM at risk of potential liability and possibly cause harm or irreparable harm" to Matanic. Simply put, "that is precisely what the ADA generally, and the 'regarded as' prong specifically, [was] designed to prevent." EEOC v. American Tool & Mold, Inc.


The ADA, like many other employment laws, is aimed at stopping employers from jumping to conclusions about employees' abilities based on stereotypes and generalized assumptions. Individualized determinations are critical, particularly when it comes to assessing an employee's ability to perform essential job functions. Failure to make an individualized determination about an employee's ability to perform the job will increase your risk of potential liability.

If you have questions about this article, you may contact the author at arodman@stearnsweaver.com. Read More...