Ms M was an experienced nurse practitioner when she applied for a temporary position with a staffing company that contracted with the US Department of Veterans Affairs (VA) to provide health care services to a Texas Veterans Health Care System. Ms M was applying for a job in one of the health care system’s outpatient clinics. After she was interviewed by a staffing company, it forwarded her information to the VA for the purpose of credentialing her for work at the VA facility.

Ms M received several documents from the VA credentialing specialist that she was asked to complete. One of the documents included a Declaration of Health, which read: “I, _____, hereby declare that, to the best of my knowledge, I do not have a physical or mental health condition that would adversely affect my ability to carry out the clinical privileges which I have requested from VA Health Care System.” Underneath the declaration was a place for a physician to sign and concur with the Declaration of Health.

Ms M submitted some of the requested credentialing documents but declined to return the Declaration of Health and Physician Confirmation, telling the credentialing specialist that “questions regarding my disability status could not be asked until somebody has made me an offer.” The staffing company contacted Ms M and strongly suggested that she submit the forms, but Ms M reiterated that the Declaration of Health could not be requested until a committed job offer was made. As a result, the staffing company informed Ms M that it would be “pulling her application,” and it subsequently requested that the VA “remove” Ms M as a candidate because “she is not willing to fill out the paperwork requested for VA credentialing.” The VA terminated the credentialing process immediately.

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Legal Actions

The Americans with Disabilities Act (ADA) restricts employers from asking medical questions and requiring medical examinations. Ms M hired an attorney and filed an employment discrimination complaint with the VA, asserting that the VA had violated the law when it required her to undergo a physical assessment before extending her a job offer. The complaint was initially dismissed for lack of standing, but after Ms M appealed to the Equal Employment Opportunity Commission (EEOC) the dismissal was reversed and a hearing was ordered.

The hearing was conducted by an administrative judge who ultimately sided with the VA, finding that the VA did not engage in discrimination when it terminated the credentialing process. The EEOC affirmed the administrative judge’s decision. Ms M resorted to her final legal option — she filed a lawsuit in federal court.

The Court Decides

In its decision, the court first noted that the ADA prohibits employers from discriminating against qualified individuals with a disability because of the disability. To do this, the statute restricts employers from requiring medical tests or asking medical questions during the hiring process. However, the court pointed out that the restrictions vary from most restrictive to least restrictive in 3 categories: pre-offer job applicants, post-offer job candidates, and current employees. 

Pre-offer Job Applicants: What employers are allowed to ask pre-offer job applicants is the most limited. Employers may not ask whether an applicant has a disability and the nature and severity of the disability, nor may they require a medical examination. But employers are allowed to ask about an applicant’s ability to perform job-related functions and for a description of how, with or without reasonable accommodation, the applicant will be able to perform job-related functions.

Post-offer Job Candidates: Employers are less restricted on what conditions of employment they can impose on post-offer candidates. Prospective employers may require candidates to undergo medical examinations prior to starting a job and condition the offer of employment on the results of the examination, as long as all new employees are subjected to such scrutiny.

Current Employees: Employers have the most leeway when requesting information from employees. Employers may require medical examinations that are job-related and consistent with business necessity.

First, the court had to determine under which classification Ms M fell. The VA argued that Ms M was offered a job subject to her completing the VA credentialing process. Ms M argued that she was never officially offered the position. The court sided with Ms M and held she was a pre-offer job applicant, meaning she could not be asked whether she had a disability or be required to undergo a medical examination.

The court then had to determine whether the Declaration of Health, together with the Physician Confirmation, constituted a permissible pre-employment inquiry or an unlawful medical examination. The EEOC’s definition of s medical examination is a “procedure or test that seeks information about an individual’s physical or mental impairments or health.” The criteria for a medical examination included whether the test and results are ordered and interpreted by a health care professional, whether the test is invasive, whether medical equipment was used, and whether the test is normally given in a medical setting. The court concluded that the Declaration of Health and Physician Confirmation were not medical examinations. Ms M’s case was dismissed.

Protecting Yourself

Sometimes a little bit of knowledge is a dangerous thing. Ms M thought she understood what the VA could ask her as part of a job application, but she was mistaken, and that mistake cost her the position.

How can you avoid this happening to you? First, make sure you understand what category you fall into: pre-offer applicant, post-offer candidate, or current employee. The category you are in governs what your employer may ask you. Second, you need to consider what is being asked. Is it an examination? Is it a form? Is it tied to your job function? Finally, you need to determine whether what you are being asked is acceptable according to the category you are in. With that information, you’ll have a better idea of whether you can object to something a prospective employer is asking for without potentially sacrificing the job.

Ann W. Latner, JD, a former criminal defense attorney, is a freelance medical writer in Port Washington, New York.

From the July/August 2023 Issue of Clinical Advisor