Virginia Physical Exams: What you need to know

The Virginians with Disabilities Act prohibits employment practices that discriminate against qualified individuals with a disability (VA Code Sec. 51.5-41). The law covers all employers, regardless of size (Yates v. Volunteer Health Care Sys., 783 F. Supp. 1002 (W.D. Va. 1992)). The statute does not address physical examinations.
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Fitness-for-duty exams. The 4th Circuit Court of Appeals has ruled that an employer's physical fitness test may have been a pretext for sex discrimination (Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289 (4th Cir. 2010)). In this case, the employee was a truck driver who transferred from a long-haul position to a local delivery position with the same employer. Following an ankle injury, her employer required her to take a fitness test to assess her ability to perform her job duties. However, the evidence showed that the employer did not require the test of all returning employees and that parts of the exam tested performance unrelated to her ankle injury (e.g., she was too short to place a box of weights on a overhead shelf). After she failed the exam, she was fired and replaced with a male employee. The court ruled that she could proceed to a jury trial because there was enough evidence that the test was a pretext for sex discrimination.
Practical tip: Fitness-for-duty exams are permitted under state and federal law when there is a need to determine whether an employee is still able to perform the essential functions of his or her job. However, requiring the test for selected employees is likely to lead to claims of unlawful discrimination.
An employer may not require an employee or job applicant to pay the cost of a medical ...

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