Virginia employers have legal and ethical duties to keep their employees, customers, and the public safe. In an effort to carry out these important duties, many employers are left wondering how far they may (or should) go in pre-employment screenings in an effort to prevent workplace accidents. To succeed in balancing these legal duties, employers must deftly navigate both State and Federal laws. The Americans with Disabilities Act (ADA) and the Virginia Human Rights Act (VHRA) set out strict rules for covered employers (including private employers, state and local governments, employment agencies, and labor organizations) to prohibit workplace discrimination against people with disabilities in the workplace. The ADA applies to employers of 15 or more and the VHRA applies to workplaces with 6 or more employees. Some noteworthy pre-employment disability discrimination issues for employers to consider include the following:

• Prior to employment, employers are prohibited from asking whether a potential employee has a disability or has any past or present medical conditions.

• Pre-employment medical examinations are prohibited. However, after you have offered employment, and prior to the start date, an employer may require a medical examination if the policy applies to all new employees holding similar jobs. If an individual is turned down for work based on the results of a medical examination, the employer must be able to prove that it is physically impossible for the prospective employee to do the work required—i.e., that no reasonable accommodation can be made for the prospective employee’s condition.

• Tests which measure aptitude, agility, intelligence and specific skills are not considered to be "medical examinations" under the ADA and are not subject to the additional special rules which govern medical examinations.

• Any tests you do use must be designed to test the essential functions of the job, and that they are accurate predictors of successful performance on the job. If the tests you use screen out persons with disabilities, they must be job related and consistent with business necessity.

• Employers have an obligation to provide persons with disabilities reasonable accommodation to enable them to take the test. The place where the tests are held must be accessible. Persons with disabilities must be given reasonable accommodation to enable them to take the test.

• Persons with disabilities might need a longer time to complete the test. If the job does not require hearing, but the test does, you should have a sign language interpreter or other appropriate accommodation for a deaf applicant. This does not mean that you have to employ a sign language interpreter at all times. A person with dyslexia may be given an opportunity to take an oral test instead of a written test unless the ability to read is the skill the written test is designed to measure. Your job advertisement can indicate that applicants requiring reasonable accommodation notify you in advance so that you can make the appropriate arrangements.

• Applicants should not be disqualified from a job they have the ability to perform because a disability prevents them from taking the test as it is presented. Remember, you are testing the applicant’s ability to perform the job, you are not testing the applicants ability to take a test.

• Interviews must be held in an accessible place. Is there an entry which can be used by those with mobility problems? Is parking available near the entry? Are ramps and/or elevators available?

• If you can plainly see that that an applicant will not be able to perform a job function because of a visible disability, you may ask that particular applicant to describe or demonstrate how s/he would perform the job function. When an employer reasonably believes that an applicant will need reasonable accommodation to perform the functions of the job, either because the applicant has an obvious disability or because of voluntary disclosures by the applicant, the employer may ask whether s/he needs reasonable accommodation and what type of reasonable accommodation would be needed to perform the functions of the job.

• The employer also may not ask a potential employee to disclose workers’ compensation history.

What About Safety Concerns? The ADA does not compel an employer to hire a person who would be a direct threat to his or her own health or safety, or to the health and safety of others at the worksite. Before you decide not to hire someone because you think he or she poses a direct threat, you must first determine that the individual poses a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. This determination must be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. The specific risk posed by the individual should be identified. The determination of whether an individual poses a direct threat should be based on the following factors: 1. the duration of the risk; 2. the nature and severity of the potential harm; 3. the likelihood that the potential harm will occur; and 4. the imminence of the potential harm. Your assessment of a direct threat to health or safety must be based upon a reasonable judgment that relies on the most current medical knowledge and/or on the best available objective evidence. If you are interested in assistance and guidance in developing employment screening programs, interview questions, and/or physical testing programs that adequately balance workplace safety against the protections for prospective employees please contact Megan Wagner at 804-377-1275 (mwagner@setlifflaw.com) or Steve Setliff at 804-377-1261 (ssetliff@setlifflaw.com).