The Americans with Disabilities Act sets forth the conditions under which employers can require medical examinations as a condition of hire. Last month, the Ninth Circuit Court of Appeals held that an employer violated the ADA when it revoked an applicant’s conditional offer of employment after he failed to provide an MRI of his back.
 
In EEOC v. BNSF Railway Co., during the interview process, the applicant disclosed a former back injury but provided medical information confirming that he had no current back problems. Nevertheless, BNSF requested an MRI, which would have to be paid for by the applicant. He declined and the defendant revoked the job offer. The EEOC eventually sued on his behalf, alleging that the defendant regarded the applicant as having a disability and wrongfully required him to pay for the MRI. In an unusual move, the district court granted summary judgment to the EEOC and issued a nationwide injunction to prevent BNSF from requiring applicants to pay for pre-employment medical exams.
 
On appeal, the Ninth Circuit affirmed the judgment against the defendant but vacated the injunction. The court stated that by asking for the MRI, the defendant perceived the applicant as having a medical condition that disqualified him from the job unless he proved otherwise. The ADA is silent on who pays for pre-employment medical exams, but the Ninth Circuit concluded that requiring the applicant to pay discriminates against persons with disabilities or perceived disabilities.
 
The court vacated the injunction and remanded the issue to the lower court for additional hearings. Employers that require medical examinations of applicants or employees should bear the cost of such procedures. While companies can ask employees for medical information from their providers, mandating certain exams or tests must be done with the understanding that the employers will pay for them.