Lab Soft News: Mandatory Pre-employment Lab Testing for Acute or Chronic Disease

In a previous note (see: Update on Products to Spoof Pre-Employment Urine Drug Testing), I commented on the topic of how pre-employing urine samples, nominally collected for drug screening, might be used for an additional purpose -- testing for acute or chronic disease. I have no evidence that this is occurring but only a hint of it from a drug testing web site that I visited. Dr. Tony Killeen reacted to my note in his blog in the following way (see: Pre-employment testing for chronic diseases?):

... Bruce Friedman, in a blog post last week, mused on whether pre-employment testing for chronic diseases was legal. It's an interesting question because so many chronic diseases such as diabetes, or risk of heart disease are identifiable merely by doing laboratory testing. According to an article in HR Magazine from 1992 the Americans with Disabilities Act (ADA) specifies that:

...after making a conditional offer of employment, but before the applicant actually commences active employment, an employer may make unrestricted medical inquiries, but may not refuse to hire an applicant with a disability based on the results of such inquiries, unless the reason for the rejection is "job-related and justified by business necessity."

This makes me wonder what, if any, duty an employer who discovers some medical information about a job applicant has to disclose that information to the applicant (particularly if the applicant is not hired)? The more recent Genetic Information Nondiscrimination Act of 2008 prohibits the use of an individual's genetic information for making hiring or firing decisions. An article in the New England Journal of Medicine last year outlines the provisions of that act.

When I raised the issue of pre-employment lab testing for disease in my original post, I was assuming that such testing might be happening without notice, which I am sure is illegal. Tony's comments and the information that he provides raise additional interesting questions about the scope and scale of pre-employment lab testing. I discuss some of them below:

After making a conditional offer of employment, it seems that an employer can make unrestricted medical inquires of the candidate but are they allowed to confirm any of these responses by lab testing? If an individual asserts that he does not have chronic diseases, can the company confirm this assertion by lab testing?
An employer can't refuse to hire an applicant with a disability but can reject the individual if the problem might hamper job performance or could be justified by business necessity. Let's say an applicant has a very high cholesterol value. Could the prospective employer assert, for example, that the proposed job (e.g., a sales manager) was very stressful and therefore the candidate was not suitable for it.
Finally, there is Tony's point whether a prospective employer, having run pre-employment lab tests, has an obligation to inform the applicant about any abnormal test results that have been obtained.

May 2020