Delaware's Persons with Disabilities Employment Protections Act prohibits employment practices that discriminate on the basis of disability. The Act covers employers with four or more employees, government agencies, labor organizations, and employment agencies.
Once an offer of employment has been made, an employer may require a job applicant to submit to a physical examination provided either (DE Code Tit. 19 Sec. 720 et seq.):
• The exam is required of all applicants offered employment in the same job category, regardless of disability; or
• The exam is limited to determining an individual's capacity to safely perform the job in question or possible accommodations for a disability.
The state law is similar to the federal Americans with Disabilities Act (ADA), which also addresses the issue of physical exams. The ADA allows employers to give exams to both applicants and employees, but with certain restrictions. The ADA covers employers with 15 or more employees.
Applicants. Under the ADA, applicants may not be given an exam before a job offer has been made. However, once an offer has been made and before an applicant begins to work, an employer may require an exam and condition the job offer on the exam results, provided:
• The exam is given to all applicants who have been offered jobs in the same job category, regardless of disability.
• Information gathered during the exam is maintained on separate forms and in separate files and treated as a confidential medical record.
Employees. Under the ADA, employees may be given a medical exam if it serves a legitimate business purpose. For example, an employer may require an exam when there is a need to determine whether an employee is still ...