Timing and Legal Issues
Americans with Disabilities Act (ADA)
Generally, an employer is not allowed to ask an applicant about his or her health until a conditional job offer has been extended. Such a job offer is conditionional on the medical evaluation confirming that the applicant is medically capable of performing the essential job functions of the position.
After a job offer has been made, but before the applicant starts work, medical questions and medical examinations and testing are allowed if they are applied to all new employees in the same job. The scope of these medical questions and examinations does not have to be directly related to the job.1-4
Genetic Information Nondiscrimination Act (GINA)
GINA prohibits employers from requesting or requiring genetic information. Genetic information may not be used to make employment decisions. GINA defines genetic information as follows:
“Genetic information includes information about an individual’s genetic tests and the genetic tests of an individual’s family members, as well as information about the manifestation of a disease or disorder in an individual’s family members (i.e., family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Genetic information also includes an individual’s request for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the individual or a family member of the individual, and the genetic information of a fetus carried by an individual or by a pregnant woman who is a family member of the individual and the genetic information of any embryo legally held by the individual or family member using an assisted reproductive technology.”5
The ACOEM LEO Task Group recommends that police physicians not request family history from LEOs and LEO candidates except when allowed under GINA. Legal consultation would be prudent for police physicians to ensure compliance with GINA.
The law enforcement agency and the police physicians should comply with all applicable laws and regulations to define storage requirements and access to medical information, including medical history forms, medical examinations reports, tests, documentation from treating/consulting physicians. Medical information should be kept in a file separate from other personnel records and marked as “Confidential” with access limited to those with a need to know.