Publisher’s Note:  Today’s guest post is provided by Brandon Underwood, one of my colleagues at Fredrikson & Byron, P.A.   Hopefully Brandon will catch the blogging bug and continue to post….

The Americans with Disabilities Act (ADA) forbids medical examinations and inquiries in employment.  But not all of them.  Instead, an examination or inquiry’s permissibility, and scope, turns primarily on when it occurs.  Too early, and the examination violates the ADA.  Too late, and it may as well.

Correctly identifying a person’s spot on this timeline ordinarily isn’t too difficult.  Has she, for instance, been offered a job?  But the difficulty ratchets up when one company merges with another and will absorb its employees.  How to treat these incoming employees?  In Hustvet v. Allina Health System, No. 17-2963 (8th Cir. filed Dec. 7, 2018), the Eighth Circuit suggested the ADA allows these employees at least in some cases to be given an “entrance examination.”

Hustvet had worked at Courage Center for about 15 years, helping patients with fragile immune systems.  In 2013, as part of a merger, Allina offered employment to all Courage Center employees meeting Allina’s employment conditions, including a health assessment screen.  Hustvet completed the screen but ignored a respirator form and stated she was unaware if she was immunized for rubella.  Testing later confirmed she was not.

After the merger, Allina instructed Hustvet to submit a completed respirator form and develop rubella immunity by taking the MMR vaccine.  Hustvet refused, and Allina terminated her employment.  Hustvet sued, alleging the health screen violated the ADA (and the counterpart Minnesota law).

She first contended the screen was impermissible because Allina required it too early:  before the job offer.  The ADA forbids an employer to require a medical examination before offering employment.  Alternatively, Hustvet insisted she was a “continuous” employee of the Courage Center and Allina and thus the screen was required too late:  after she was employed.  As to current employees, the ADA forbids medical examinations unless they are job-related and necessary to the employer’s business.

Allina argued the health screen was permissible as a condition of employment, enforced after the Allina job offer but before Hustvet began at Allina.  After offering employment, an employer may require a medical examination and condition a final offer on the examination’s results—this is an “entrance examination.”  An entrance examination need not be job-related or necessary, but it must be given to all employees regardless of disability.

In Hustvet, the Eighth Circuit was “inclined to” find the screen was a permissible entrance exam.  Hustvet received a letter confirming she would “soon be” an employee of Allina on the merger date, if she met the health screen requirements.  The letter clarified the screen needed to be completed before her employment with Allina began, suggesting the offer was conditional.  As a result, the court reasoned, it was immaterial that Hustvet was terminated after the merger, when Allina discovered she hadn’t completed the screen.  In the end, however, the court dodged this question, finding the screen permissible even assuming Hustvet was a current Allina employee.

Still, the ruling signals the Eighth Circuit’s willingness to apply the “less strict” entrance-examination requirements to employees absorbed in merger.  Dismissing Hustvet’s contention, the court didn’t presume she was a current employee of Allina because she’d worked for Courage Center.  The facts, in other words, will determine an employee’s status.

For now, Hustvet reminds us that the ADA forbids a medical examination of a current employee unless it’s related to the employee’s job and necessary to the business.  The Eighth Circuit had little difficulty concluding that screening an entire class of health care workers—all employees, like Hustvet, with client contact who merged into Allina—for communicable diseases was job-related and necessary.  After all, testing would reveal whether they risked spreading the disease to patients.

But if the same screen were required of, say, lawyers, the result may be different.  And in that case the Eighth Circuit would need to address the question it left expressly unresolved in Hustvet.

Image Credits: From GoogleCreative Commons license