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188 | Recruitment and Selection Law for Local Government Employers
essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers’ compensation or insurance costs. An employer may use such information to exclude an individual with a disability where there is specific medical documentation, reflecting current medical knowledge, that this individual would pose a significant, current risk of substantial harm to health or safety.66
On its face, this is a reasonable standard. Applying the rule to specific situations, however, is more problematic. Consider the following two examples given by the EEOC. In the first, a medical history reveals that a job candidate has re-injured his back seriously on several occasions while doing similar work. This person’s back condition has become progressively worse. The EEOC says that in this situation, an employer could withdraw the job offer because “[e]mploying this person in this job would incur significant risk that he would further reinjure himself.”67 A little further on, the EEOC gives a variation on this example. In the second example, an applicant for a position that requires heavy lifting has an abnormal back x-ray. An employer may not withdraw its job offer because it fears—based solely on the back x-ray—that this applicant is more likely to suffer an on-the-job injury while lifting. But if the employer has evidence that the applicant has injured and re-injured his or her back multiple times “in similar jobs,” and there is no reasonable accommodation that can reduce the risk of re-injury, then the employer may withdraw the job offer.68 These examples seem to recognize an employer’s right to refuse to hire those individuals whom a reasonable person might think will be likely to injure themselves on the job, but they are misleading. In the first example, the EEOC finds it permissible for an employer to withdraw an offer based on medical history alone, without a current physical examination of the applicant. In the second example, it says it is impermissible to withdraw an offer where there is a current x-ray showing an abnormality in the absence of a history of re-
66. See Equal Employment Opportunity Commission, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (January 1992) (hereinafter EEOC Technical Assistance Manual), at VI-8.
67. See EEOC Technical Assistance Manual at VI-7.
68. See EEOC Technical Assistance Manual at VI-8.
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| Title | Recruitment and selection law for local government employers - Page 204 |
| Full Text | 188 | Recruitment and Selection Law for Local Government Employers essential functions of a job, either with or without an accommodation, because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers’ compensation or insurance costs. An employer may use such information to exclude an individual with a disability where there is specific medical documentation, reflecting current medical knowledge, that this individual would pose a significant, current risk of substantial harm to health or safety.66 On its face, this is a reasonable standard. Applying the rule to specific situations, however, is more problematic. Consider the following two examples given by the EEOC. In the first, a medical history reveals that a job candidate has re-injured his back seriously on several occasions while doing similar work. This person’s back condition has become progressively worse. The EEOC says that in this situation, an employer could withdraw the job offer because “[e]mploying this person in this job would incur significant risk that he would further reinjure himself.”67 A little further on, the EEOC gives a variation on this example. In the second example, an applicant for a position that requires heavy lifting has an abnormal back x-ray. An employer may not withdraw its job offer because it fears—based solely on the back x-ray—that this applicant is more likely to suffer an on-the-job injury while lifting. But if the employer has evidence that the applicant has injured and re-injured his or her back multiple times “in similar jobs,” and there is no reasonable accommodation that can reduce the risk of re-injury, then the employer may withdraw the job offer.68 These examples seem to recognize an employer’s right to refuse to hire those individuals whom a reasonable person might think will be likely to injure themselves on the job, but they are misleading. In the first example, the EEOC finds it permissible for an employer to withdraw an offer based on medical history alone, without a current physical examination of the applicant. In the second example, it says it is impermissible to withdraw an offer where there is a current x-ray showing an abnormality in the absence of a history of re- 66. See Equal Employment Opportunity Commission, Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (January 1992) (hereinafter EEOC Technical Assistance Manual), at VI-8. 67. See EEOC Technical Assistance Manual at VI-7. 68. See EEOC Technical Assistance Manual at VI-8. |
