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Scott Wagner & Associates, P.A. Motto
  • Employment
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  • Civil Rights
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  • Healthcare

Does Your California Employer Have to Pay for Medical Testing If They Require it For Your Job?


The Americans with Disabilities Act as Amended (ADAAA) is a federal law which limits an employer’s ability to make inquiries into an employee or job applicant’s medical condition(s), so long as the employer has 15 or more employees.

Prior to making an offer of employment, an employer is generally prohibited from asking any questions related to an employee’s health in order to make a decision about offering employment. For example, absent limited circumstances, a job application cannot ask, “Do you have a heart condition?”

However, once a conditional offer of employment is made, there are certain circumstances in which an employer may ask questions about the applicant’s health, provided that it is does so on a non-discriminatory basis and for job-related necessity. 

Ninth Circuit: You Cannot Make Someone Pay for a Medical Exam Based on Perceived Disability 

Similarly, an employer may require conditionally hired job applicants to take a pre-employment medical exam. But again, the employer cannot use this as a pretext for disability discrimination. So an employer cannot generally require one applicant undergoes an exam that other applicants do not have to, especially if targeting employees it believes may be disabled.

A recent decision from the California-based U.S. Ninth Circuit Court of Appeals addressed a related question: Can an employer require a job applicant to pay for his own medical exam? The case of EEOC v. BNSF Ry. Co., No. 16-35457, centered around a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) against the BNSF Railway Company on behalf of a man who applied for a job with the defendant as a private security officer.

After the defendant extended a conditional job offer to the applicant, it conducted a medical review. During this review, the applicant “disclosed that he had injured his back four years before, suffering a two-level spinal disc extrusion.” However, the applicant’s doctors–as well as the defendant’s own medical subcontractor–determined this injury did not impose any current limitations on the applicant’s ability to perform the job.

Not satisfied with this, the defendant then demanded the applicant obtain and submit an MRI of his back–at his expense. This would cost the applicant, who was in bankruptcy at the time, a total of $2,500. As the applicant could not afford this, he did not get the MRI, and the defendant revoked its job offer.

The EEOC filed suit, alleging the defendant violated the ADAAA. A federal district court, and later the Ninth Circuit, agreed with the EEOC. As the Ninth Circuit explained, the ADAAA applied to the job applicant here, because even if he did not have a disability-in-fact, the defendant “regarded” him as having a disability. On that basis, it then asked for the MRI, which it did not request from other job applicants. That constituted discrimination. 

If you have additional questions about how this decision might apply to your current or potential employer or believe you have been screened out from employment due to your disability, contact an experienced California employment law attorney right away.

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* Cathleen Scott is licensed to practice in Florida only.

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