The Americans with Disabilities Act (“ADA”) is the federal law that prohibits employers from discriminating against employees and applicants with disabilities. The ADA’s protections also extend to individuals discriminated against due to a perceived disability.

A federal judge in Chicago recently considered whether an employer violated the ADA when it refused to hire a candidate who seemed to be high risk due to health concerns. The employer offered him a position requiring physical labor so long as he passed a medical examination designed to ensure he was physically able to perform. Part of the exam was a body mass index (“BMI”) test, and it revealed he had a high BMI. Generally, a high BMI reveals heightened risks for several health concerns. Given these risks, the employer withdrew its offer.

The employer probably believed it was putting safety first and acting in the best interests of its entire workforce by opting to hire another, healthier candidate. However, the ADA’s protections apply to employees and applicants regardless of whether they’re discriminated against because they have a disability or because the employer believes they will develop one. As a result, this seemingly proactive employer may have inadvertently opened itself up to liability under the ADA.

While this case doesn’t necessarily govern conduct in New York State, it remains true that employers cannot avoid liability by “engaging in adverse employment actions before an impairment arises,” and it’s a good reminder that job applicants – just like employees – are protected by the ADA.  Employers should be mindful of this when assessing their pre-employment and conditional employment procedures.

The attorneys at The Coppola Firm routinely assist businesses with all stages of the employment process. If you’re an employer looking for guidance on employment policies, you’re welcome to contact us.