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January 12, 2009

Pre-employment testing for chronic diseases?

My friend and colleague, Dr. Bruce Friedman, in a blog post last week mused on whether pre-employment testing for chronic diseases was legal. It's an interesting question because so many chronic diseases such as diabetes, or risk of heart disease are identifiable merely by doing laboratory testing. According to an article in HR Magazine from 1992 the Americans with Disabilities Act (ADA) specifies that:

...after making a conditional offer of employment, but before the applicant actually commences active employment, an employer may make unrestricted medical inquiries, but may not refuse to hire an applicant with a disability based on the results of such inquiries, unless the reason for the rejection is "job-related and justified by business necessity."

This makes me wonder what, if any, duty an employer who discovers some medical information about a job applicant has to disclose that information to the applicant (particularly if the applicant is not hired)?

The more recent Genetic Information Nondiscrimination Act of 2008 prohibits the use of an individual's genetic information for making hiring or firing decisions. An article in the New England Journal of Medicine last year outlines the provisions of that act.