Many Florida business owners hand new hires a long medical questionnaire after making a job offer. The goal is understandable: spot pre-existing medical conditions and protect the company from workers’ compensation claims. But that questionnaire may be creating more risk than it prevents.
As an HR consultant working with small and mid-sized Florida businesses, we hear this question often: “Is there a less intrusive way to protect ourselves?” The answer is yes. Here’s why the traditional medical questionnaire creates some problems, and what methods may work better.
Why Broad Medical Questionnaires Can Backfire
Under the Americans with Disabilities Act (ADA), employers with 15 or more employees may ask medical questions after a conditional job offer. Florida also has its own Civil Rights Act, and some Florida counties and cities have local anti-discrimination ordinances. The rules are strict, though:
- The same questions must go to everyone entering the same job category (all hires for that job, not just to some).
- Answers must be kept confidential and stored separately from personnel files.
- An offer can be withdrawn only for medical reasons that are job-related and consistent with business necessity.
Broad medical questionnaires create three common problems (and a sloppy medical inquiry process may invite liability):
- You collect more than you need. Information about an employee’s unrelated health history can become evidence in a discrimination claim later, even if you never acted on it. You knew about it.
- GINA violations are easy to make. The Genetic Information Nondiscrimination Act prohibits asking about family medical history. Some off the shelf medical questionnaires may include family history questions.
- Withdrawn offers invite lawsuits. If you pull an offer after reviewing medical responses, you’ll need to prove the decision was tied to the essential functions of the job. Sometimes learning about medical history will create other concerns, even if the employee is capable of performing the essential duties. Just being afraid that an employee might get hurt, is not enough to revoke an offer.
Screen for the Job, Not a Person’s Medical History
1. Write accurate job descriptions with physical demands
List each role’s essential functions and physical requirements, such as lifting limits, hours on your feet, climbing, standing and repetitive motion. Clear written job descriptions set expectations and form the foundation for every other step below. Applicants can be asked about capabilities (needed for the job) and they can be asked to sign their job description.
2. Use a signed ability acknowledgment
Ask each new hire to sign a statement confirming they can perform the essential functions with or without reasonable accommodation. This focuses on ability rather than diagnosis, or existing medical conditions. Applicants can be told about the physical requirements of a position, and these required capabilities can be put into a New Hire Questionnaire that can be completed with an Application.
3. Consider job-specific physical ability testing
For physically demanding roles, a post-offer test that simulates real job tasks (for example, lifting 50 lbs to shoulder height) measures capability directly. It must be based on the actual job and applied consistently to everyone in that role. Companies can look for a local occupational medical clinic or doctor to see what services are available.
4. Narrow your questionnaire if you keep one
If you prefer to keep a post offer medical questionnaire, limit it to questions tied to the job’s essential functions. Remove family history and general health questions, and include GINA safe-harbor language. Keep the form short and work focused. All medical related documents should be kept out of the employee’s normal personnel file, and instead stored in an employee medical folder.
Bottom Line
A broad post offer medical questionnaire gives you a lot of sensitive information and only a little bit of protection (and assuming the person is being honest). A better approach for Florida small and mid-sized businesses is to consider the following actions: (1) Replace general medical questions with clear job demands and a signed job capabilities acknowledgment or job description; (2) investigate the use of job-specific ability testing where physical requirements are significant; and (3) invest in other ways to prevent or limit workers’ compensation claims, such as safety training, injury prevention, a drug-free workplace program, and return-to-work options. This combination of actions lowers your workers’ comp costs and your legal exposure at the same time.
