Dollar General is paying a $1 million fine for violating a law you’ve probably never heard of

A pre-employment physical exam is pretty standard at many companies, especially in a workplace as physical as a warehouse. So why did the EEOC just settle a lawsuit with Dollar General because of their pre-employment physical exam policy?

Because Dollar General asked employees not just about their medical history, but about their family medical histories as well. This violates a little-known law known as GINA — the Genetic Information Non-Discrimination Act.

The Equal Employment Opportunity Commission reports that leaders at Dollar General’s Bessemer, Alabama distribution center asked candidates to share information about “past and present medical conditions of family members such as cancer, diabetes, and heart disease.”

As an employer, you can conduct a pre-employment physical as long as it meets the following conditions:

• The physical is job-related and consistent with business necessity.

• The physical exam is done after the offer. You cannot require a physical as part of the application process.

• All applicants for the same position receive the exam. (That is, you cannot say, “This candidate is 60; we better do an exam. But this 22-year-old should be fine.”)

You can’t ask an employee about their family medical history because that requires them to divulge genetic information. You cannot deny someone a job because they have an elevated risk of cancer, for instance. There is no reason for an employer to need this information.

When you should require a pre-employment physical

Ensuring your employees can physically carry out a job like a warehouse position makes sense. If a medical exam determines a candidate cannot lift the required weight, for instance, even with a reasonable accommodation, you can rescind the offer.

However, many companies want to do pre-employment physical exams to limit the company’s liability. If an employee has a pre-existing condition that the doctor notes in the pre-employment exam, then the employee can’t turn around and claim the job caused the issue.

For highly physical jobs, it’s a good idea. (Although, as part of the settlement, Dollar General agreed to stop exams for their Alabama warehouse.) Many companies do them even for office jobs, but the value is limited. Consult your local employment attorney on whether or not it’s a good idea for your business.

What you can do with the exam results

Not much, actually. In some cases, the results would mean a candidate is disqualified from the position. In others, you will document a pre-existing condition to protect yourself against worker’s comp claims. But another issue in this Dollar General case was how they handled news about high blood pressure and eyesight issues. They rescinded job offers to candidates “whose blood pressure exceeded 160/100 or who had less than 20/50 vision in one eye, even when those impairments did not prevent the applicants from safely performing the job.”

That last part is critical. Under the Americans with Disabilities Act, you must offer reasonable accommodations to people with disabilities if needed. You would have to demonstrate that someone with 20/50 vision in one eye could not perform the job even with an accommodation. That’s going to be a hard thing to prove.

As for high blood pressure, it can certainly lead to increased medical costs, but you can’t legally disqualify someone for that. The question is, can this person do the job? The EEOC said these people could.

Don’t rescind a job offer based on a physical exam until you consult your employment attorney.

Conducting a legal, appropriate exam

You probably don’t have an in-house physician to provide these exams, so you send your job candidates to their physician, an urgent care center, or a clinic. That’s fine, but remember that, according to employment attorney Eric Meyer, you can’t ask questions about medical history, even if you don’t use the information.

So please remind physicians that even though family medical history is standard on a physical exam for patients, this pre-employment exam is different and covered by law. They can’t ask, even if you don’t use the information.

Don’t let this little-known law cost you a million dollars — and don’t let it stop you from hiring candidates who can do the job.

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