Roman Amaguin, Esq. has sucessfully practiced law in Hawaii since 1995 and specializes in employment law, labor law, and civil litigation. Visit his website at www.amaguinlaw.com and www.virtualhawaiiemploymentlawyer.com
Hawaii employers may require job applicants to undergo a physical examination as part of the hiring process. Employers may also have medical examination requirements for current employees. Whether imposed at the hiring stage or on the current workforce, employers’ physical or mental examination requirements are subject to significant restrictions under federal and state law.
Hawaii’s Employment Practices law and the Americans with Disabilities Act (“ADA”) prohibit employers from discriminating against employees and applicants for employment who have disabilities. As a result, physical examinations cannot be administered or used in a way that unfairly or disproportionately screens out or adversely affects the employment opportunities of disabled individuals. In the hopes of eliminating the unlawful consideration of disabilities in hiring, both Hawaii state and federal law stated that employers may not require medical examinations of job applicants until after conditional offers of employment are made. Employment may be conditioned on the results of the examination only if all entering employees in the same job category are subject to the same examination.
Medical examinations of current employees must be job related and consistent with business necessity. Such examinations must be limited in scope to the employee’s ability to perform specific and essential job functions, or to evaluate an employee’s disability or need for reasonable accommodation. The Hawaii Administrative Rules require the employer to provide the medical examiner with a written job description, including the essential job functions and the Hawaii state regulations defining “reasonable accommodation” and “direct threat.”
All information regarding the medical condition or history of an applicant or employee must be collected and maintained separately as confidential records. If the Company requires an employee to complete a medical examination, the Company should first obtain an authorization form compliant with HIPAA, which prohibits health care providers from releasing protected health information to employers except in limited circumstances.
Moreover, Hawaii law prohibits the release of test results of sexually-transmitted diseases (such as HIV/AIDS) for employment, educational, or housing purposes without the voluntary consent of the tested individual.
Tests for use of illegal drugs are not considered medical examinations.
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