Instead of answering this question I am going to post a recent Press Release issued by the EEOC that involved Pre-Employment Physicals. Using Pre-Employment Physicals in the wrong way will always land your company in hot water – Example of Garney Construction Company proves my point. (From EEOC website – June 1, 2012 Press Release)
Garney Construction Co. and Georgia Power Company will pay $49,500 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to the EEOC’s suit, Garney offered a front-end loader job to Bryan Mimmovich at its construction site at the Georgia Power plant in Juliette, Ga. Mimmovich had worked for Garney operating a front-end loader on two previous occasions. This time, Garney’s contract with Georgia Power required applicants for the job to pass a Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination. Mimmovich was diagnosed with epilepsy at age 12 and, at the time he applied for the job, had been seizure-free with medication for over eight years. Nonetheless, he could not pass the DOT physical examination utilized by Garney because he was on medication for epilepsy, an automatic bar to drivers pursuant to DOT regulations. Federal law does not require heavy equipment operators to pass a DOT physical examination. Garney subsequently withdrew the job offer, citing contractual requirements with Georgia Power.
The EEOC’s lawsuit charged that Garney failed to hire Mimmovich because of his disability and Georgia Power interfered with Mimmovich’s employment relationship with Garney by requiring Garney to refuse to hire him because of his disability without an individualized assessment of his ability to perform the job.
The EEOC filed suit against Garney Construction Co. and Georgia Power Company in September 2011 in U.S. District Court for the Northern District of Georgia (Case No. 1:11– CV– 03336 – JEC), charging them with violating the Americans with Disabilities Act (ADA), after first attempting to reach a pre-litigation settlement through its conciliation process.
In addition to the $49,500 payment to Mimmovich, both employers have agreed to take specified actions designed to prevent future disability discrimination, including the re-dissemination of anti-discrimination policies and providing additional training to employees regarding pre-employment physicals and disability discrimination.
“Refusing to hire a qualified job applicant with epilepsy, long controlled by medication, defies logic and violates the law if an employer does not determine, after performing an individualized assessment of the applicant, that the applicant is a threat to the health and safety of himself or others,” said Barbara A. Seely, regional attorney of the EEOC’s St. Louis District Office. “Congress passed the ADA to protect Americans with disabilities from adverse employment actions based on fears and myths about their conditions. People with epilepsy whose seizures are controlled by medication should not automatically be excluded from the workplace because employers fear on-the-job accidents.”