Dive Brief:

• An employer violated the Americans with Disabilities Act (ADA) when it required that an applicant pay for an MRI or lose his job offer, the 9th U.S. Circuit Court of Appeals ruled in Equal Employment Opportunity Commission v. BNSF Railway Co., No. 16-35457 (9th Cir., Aug. 29, 2018)).
• The U.S. Equal Employment Opportunity Commission (EEOC) took BNSF Railway to court over that issue, and a federal district court ruled in the commission's favor. BNSF appealed and the 9th Circuit upheld the lower court's ruling, finding that although the ADA authorizes testing that may disproportionately affect individuals with disabilities, it doesn't authorize an employer to further burden a prospective employee with the cost of the testing.
• An employer would not run afoul of the law if it required that everyone who received a conditional job offer to obtain an MRI at their own expense, the court said; that employer would be imposing a cost on prospective employees across the board, with no regard for actual or perceived disabilities. "Where, however, an employer requests an MRI at the applicant's cost only from persons with a perceived or actual impairment or disability, the employer is imposing an additional financial burden on a person with a disability because of that person's disability. In the case of an expensive test like an MRI, making an applicant bear the cost will effectively preclude many applicants, which is at odds with the ADA's aim to increase opportunities for persons with disabilities."

Dive Insight:

The ADA places various restrictions on employers when it comes medical exams. Generally, an employer can't impose such requirements on an applicant until it has extended a conditional job offer, EEOC says. And after that, exams are only permitted if all new employees in the same job have to answer the questions or take the exam.

The BNSF court noted that employers can, of course, request follow-up on things uncovered during these exams, but that they still must bear the costs associated with that follow-up. "This would appear to be a necessary implication of allowing employers to conduct medical examinations — it would be an odd and incomplete medical exam that could not include follow-up inquiries or testing based on red flags raised in the initial exam," the 9th Circuit said. "But this does not support BNSF's position that the prospective employee may be forced to shoulder the cost of such follow-up exams."

And once an individual is hired and has started work, EEOC says that the law's medical exam restrictions are stricter. At that point, an employer generally can only ask medical questions or require a medical exam to support an employee's request for accommodation or if it has reason to believe the employee can't perform a job successfully or safely because of a medical condition.

Employers should also note that while the BNSF court said the employer could require that all applicants pay for their own testing, some state laws prohibit this.