North Carolina employers are increasingly using post-offer medical questionnaires or medical exams when hiring employees.  Consequently, staffing firms are often asked by their customers to require medical questionnaires and/or medical examinations of their temporary workers.  One of the motivating reasons for doing so is to defend against workers’ compensation claims. While there are advantages to using medical questionnaires, they also pose a risk of running afoul of the Americans with Disabilities Act of 1990 (ADA) as well as other federal antidiscrimination laws.  The following state and federal laws should be carefully considered before requiring medical questionnaires and/or medical examinations.

North Carolina Workers’ Compensation Act

In 2011, the North Carolina legislature codified a long-awaited defense to workers’ compensation claims.  Under the new law, an employer can deny a claim for compensation if an employee knowingly makes a material misrepresentation about his or her physical condition in the course of entering employment.  To benefit from this defense, at the time of hire or in the course of entering employment, three conditions must be met:

(1)   The employee knowingly and willfully made a false representation as to the employee's physical condition;

(2)   The employer relied upon one or more false representations by the employee, and the reliance was a substantial factor in the employer's decision to hire the employee; and

(3)   There was a causal connection between false representation by the employee and the

injury or occupational disease.  N.C. Gen. Stat. § 97-12.1 (2014).

Because this statute is relatively new, there have only been a handful of decisions that have addressed this new defense.  The Industrial Commission has shown a willingness to dismiss claims based on this defense. Norris v. Premium Transportation Staffing, IC No. X96177 (Full Comm. Dec. 31, 2013); Purcell v. Friday Staffing, IC No. X57382 (Full Comm. June 21, 2013).  However, they will also closely look to see if the false representation had a casual connection with the injury being claimed. Allen v. Titan Electric Com. Inc., I.C. No. X95190 (Full Comm. Dec. 31, 2013). 

Employers may want to require medical questionnaires of new hires in order to take advantage of this workers’ compensation defense.  However, given the small amount of case law on this topic, employers who want to use this potential defense should consider providing a job description that ideally has specific lifting requirements and time requirements to the conditionally-hired employee.  It is certainly helpful if the job description either states or establishes by context whether the duties fall into the sedentary, light, medium, or heavy categories.  As detailed in the next section, the timing of this inquiry is essential.

The employer should give an opportunity to the conditionally-hired employee to ask any questions about the job description and the duties of the position.  At the bottom of the same job description, the conditionally-hired employee should sign a statement that reads:

  • The employee has been given an opportunity to discuss the essential physical functions of the position;
  • The employee understands the essential physical requirements of the position;
  • By signing below, the employee certifies that he or she is capable of performing the above job description with or without reasonable accommodations;
  • The employer is relying on the certification, and such reliance is a substantial factor in hiring the employee; and
  • The employee understands that any misrepresentation about his or her physical condition could potentially result in the denial of workers’ compensation benefits.

The ADA and Federal Antidiscrimination Laws

The ADA permits employers to ask disability-related medical questions and require medical examinations of job applicants after extending a conditional job offer, and before the employee starts working.  Accordingly, timing is very important when making medical inquiries of job applicants.  It is a violation of the ADA to require applicants to complete a medical questionnaire prior to receiving a conditional job offer.  It is also unlawful to require some but not all applicants to complete the questionnaire. If a company uses a medical questionnaire it must do so for all entering employees in the same job category.

The “post-offer” employment period is the company’s opportunity to make disability-related inquiries. However, an employer cannot withdraw a job offer based on information obtained from the medical inquiry unless it can establish (1) that the impairment renders the individual unqualified to perform the essential functions of the job, or (2) there are safety concerns and the employer can demonstrate the applicant poses a direct threat to others because of the impairment.  If the individual’s impairment substantially limits a major life activity, then the employer must also consider whether a reasonable accommodation would enable the individual to perform the essential job duties or if it would reduce the risk of any direct threat.

After employment begins an employer can make disability-related inquiries and require medical examinations only if it is job-related and consistent with a business necessity. 

What constitutes a conditional job offer in the staffing industry?  According to the Equal Employment Opportunity Commission (EEOC), it is not enough for a staffing firm to offer an applicant a place on its roster for future consideration.  The staffing firm must offer the applicant a job assignment with a particular client before asking medical questions or requiring a medical examination.  Once a job offer for a particular client is made, and before the employee begins working, the staffing firm can ask disability-related questions or require a medical examination as long as it does so for all employees in the same job position.  

Employers must also be mindful of the Genetic Information Nondiscrimination Act of 2008 (GINA) when obtaining medical information from employees.  Under GINA, it is unlawful to request genetic information, which includes family medical history, from employees.  In order to limit liability, a post-offer medical questionnaire should avoid inquiring about family health history and contain the safe harbor language set forth in the federal regulations. 

Finally, employers should not require medical examinations or medical questionnaires of employees because of their gender, age, race, or any other protected characteristic.  A practice that requires individuals in a protected class to undergo medical tests that are not required of individuals outside of the protected class poses significant risks. By way of example, the EEOC has taken the position that requiring a mammogram form to be completed by women over age 50 is “facially discriminatory” under Title VII of the Civil Rights Act of 1964 (prohibiting sex discrimination) and the Age Discrimination in Employment Act of 1967 (ADEA) (prohibiting discrimination against persons over age 40).

In conclusion, properly drafted post-offer medical questionnaires and job descriptions can be helpful in defending worker’s compensation claims.  Before incorporating these forms into your hiring practice, make sure you are properly administering the documents at the correct time in the hiring process (post-offer of employment), and that the forms are compliant with state and federal law.  Contact your attorney should you have questions.

This article originally appeared in the July edition of Staffing Now, a publication of the North Carolina Association of Staffing Professionals (NCASP).