Pre-Emp Physicals - Is There A Value

Don D

Beyond 'Pass' or 'Fail', what value does the clinic's information actually have to your HR Department? The doctor who gives our physicals 'passes' or 'fails' them based on his knowledge of the physical demands of our jobs and the outcome of his physical. Why do we really need the clinical checkoff form that often tends to provide more than we need to know about their personal situation? Have any of you ever actually found a really useful purpose for this particular information? I'm thinking about telling the clinic to not send it to us. Your thoughts please.

Carol CA

We don't receive anything more than the overall "pass or fail" recommendation. You are right that more details are really none of our business. It is good to have the doctor's office keep this information, however, so they have a baseline in case the employee gets injured. We don't keep it here though.

Sunny

Good point, Don. I too have been thinking about our physicals lately, wondering if the information we gather is legal for us to have. I certainly don't use it - I look at the bottom of the form to see if the employee is "approved" for work and check that the drug screen results are negative. Then I file the whole long form which contains all that information we shouldn't have - family history, past illnesses, medical conditions.

Recently I was asked to check an employee's pre-employment physical form to see if he "lied" on it after a need for medical leave came up. I looked at it but advised top management that the information from the physical could not be used to make a case for terminating the employee. The whole incident made me shiver - I think the potential liability of having the information is too great.

I believe I will raise the issue of leaving the long form in the doctor's office and getting only "approved" or "not approved" and a pass-fail on the drug screen.

Thanks for bringing this up.

Gillian

We don't have physicals at all, but I have in the past. In my opinion, all the extraneous information is an invasion of privacy. We should know those things that relate to the job that the person is going to do, but beyond that we don't need to know and it's safer not to have it so that it isn't used inappropriately.

Ruskanen

We get all the information and I find it useful. Sometimes the clinics get busy and make errors. They may say "pass" but if you look you may find a lot of past injuries or medical conditions (arthritis, carpal tunnel, sore joints) that could get agravated on the job. I had the clinic send me paperwork with employee "J. Santos Hernandez" but the paperwork he had was for a former employee, "Santos Medina". They didn't even double check their work or the patient's social security numbers! When the clinic gets new employees, they don't always know what to check for or might not be familiar with our work environment. Maybe you should request to see all the info, review it, and then shred what you don't need. The medical profession is going through the same problems we all are, understaffed,underfunded and not finding the qualified employees they need. It's up to us to check their work.

Don D

"They may say "pass" but if you look you may find a lot of past injuries or medical conditions (arthritis, carpal tunnel, sore joints) that could get agravated on the job."

I have another question for you. Assuming your quote above occurs, what will you do with that information, legally? You certainly can't retract your offer based on the presumption of future possible medical complications.

Ruskanen

If it is something that would make you think that the person really is NOT suited for the job (or if you end up with someone else's paperwork), you could question the "pass" judgement. If not, it might be good information for the supervisors to know when they are working with the person. For example,if Julie has had previous back injuries, the supervisor needs to go over proper lifting procedures and remind her to lift properly if she is not. If an employee has slight hearing loss, they may not hear the supervisor yelling for them over the noise of production(supervisor might think the employee is ignoring him or her) , and the supervisor can remind the employee to always wear their ear plugs to protect their remaining hearing.

I even wrote a letter to an employee that had carpal tunnel problems in the past to let them know that we are aware of their previous problems and because of the repetitive nature of the work, very concerned with their safety and health on the job. I let the employee know that it is very important that they let their supervisor know the minute they are having any problems.

Catherine

Actually, you can withdraw a job offer if performing the job is likely to cause harm to the applicant. We've run across that problem twice in the past few weeks. The details on the evaluation are helpful because our doctor (despite our requests for a simple yes or no) periodically checks "hire - with reservations."

Don D

I would look into changing clinics if I got more than one or two "hire with reservations" in a year's time. Our physicians take an annual tour of our plants at their own expense and are intimately familiar with the physical demands of each job and are therefore able to pass or fail on that basis. On the rare, rare occasion when there is a question, the doctor calls and we have a discussion as to the wisdom of hiring and the legality of withdrawing the offer and jointly we make the right decision, which ultimately falls to the company to defend.

Gillian

Actually, maybe there is more value to physicals than we think. I once asked a company representative about their policies as part of an HR audit. This is how it went.

Me - do you have policies for physical examinations for new hires?
Company - yes, but not in writing
Me - for what job classifications do you have physicals
Company - oh, we don't do it that way
Me - OK, what way do you do it?
Company - we just send the sickly looking ones.

Steve McElfresh

Friends,

1. Anyone who requires pre-employemnt physicals needs to have an independent medical examiner who gives you the "pass-fail" for your applicants, and insulates you from any information beyond that which you absolutely need -- for instance, that necessary to manage a disability accomodation. And I would strongly reinforce those views expressed above that you continuously educate your IME on your workplace, and on each job for which you do physicals. If you have the option in your community, I would also urge using a board-certified occupational health specialist.

2. Unless you have medical professionals on staff and any such records are clearly separate and under their control, I would never want to have lab or other results from the physical in the company's possesion. You are begging for a lawsuit, with no proportionate upside.

3. You can hold your medical examiner accountable without second-quessing their dx or practicing medicine yourself. And you SHOULD hold them accountable; mixing up records or missing important symptoms can be disasterous for you (and malpractice for them), and should not be tolerated. If you do a lot of physicals, it is reasonable to have occasonal file reviews by another, independent, and similarly-qualified MD as a form of quality control.

4. Withdrawing an offer because of potential health risk to the applicant has been a dicey area, and courts have gone both ways on it. We have been given great help recently by the Supremes, in a case that can be read to support employers under some circumstances withdrawing an offer of employment to a candidate whose own health might be threatened by the conditions of employment.

The case is Chevron USA Inc. v. Echazabal, 226 F.3d 1063, decided a couple of months ago and available at
[url]http://supct.law.cornell.edu/supct/html/00-1406.ZS.html[/url]

Needless to say, this does not constitute legal advice and you should seek local counsel for same.

Warm regards,

Steve McElfresh, PhD
HR Futures

408 605 1870

Don D

Steve: Thanks for weighing in. The medical director (a physician) at the clinic we use primarily said that he understands us not wanting to have "the long form" on hand and he went off in the direction of the agreement to release that the pre-employee has signed at the clinic, which is not where I was going with the question. He also discussed the rare situation where we might want to have the information (and our attorney echoed this) to use in an accommodation situation. The attorney also mentioned the rare but occasional need an employer might have to pull the document for evidence of pre-hire false statements being made regarding a physical condition. So, now the remaining question I have is: If we DO decide to tell the clinics to NOT send the medical detail information, would we still have a right to expect it should we ever ask the clinic to give it to us? Understand also that at our company these forms are tightly controlled under lock and key with severely limited access. I'm still just not comfortable having them. At least twice, the information revealed is something I really didn't want to know and had no business knowing, no matter if only I know it. Is there an opinion as to whether the company will have free access to the forms if they are not received pre-hire but are asked for at a later date?

Steve McElfresh

Don,

As usual, you raise good questions. My thoughts, for what they are worth, follow.

I would want to be certain that you and your attorney feel confident that the agreements (one with the applicants and another with the clinic) allow for the circumstances you describe, including post-hire verification of truthful representation. If all are signed off on this, I don't see why this doesn't give you what you need; your attorney should be able to ensure that they are crafted appropriately.

I very much share your discomfort about routinely having the forms onsite. And I do understand that you are careful with the forms you have received, and would personally ensure that the information is not misused.

Nonetheless, I simply suggest that juries might be open to a line of insinuation that goes like, "Mr. Don, you helped write this final written warning, did you not? And you were in fact central to the discussions to terminate Mr. X, were you not? Indeed, you personally walked him out the door, isn't that correct? And at the time you did these acts, you were fully aware that Mr. X had AIDS, were you not? And this very sensitive, very personal and confidential medical information about Mr. X had been sent to you by your contractor, the ABC Clinic, which does physicals for your prospective employees, isn't that correct? Indeed, you routinely get such sensitive information about each of the people who become your employees, including the defendent and others who might be here today, isn't that correct? And could you please tell the men and women of the jury the business reason, the legitimate business use, for your routinely having this information????"

Regards,

Steve McElfresh, PhD
HR Futures

408 605 1870

Don D

Excellent. Excellent. You've shared what I consider to be very, very valuable information. Thanks.