The Nebraska Fair Employment Practice Act prohibits employment practices that discriminate on the basis of disability and places specific limitations on an employer's right to require physical examinations for job applicants and employees (NE Rev. Stat. Sec. 48-1101et seq.). The Act covers private employers with 15 or more employees and all state and government agencies regardless of size.
Applicants. An employer may require a medical examination if:
• A conditional offer of employment, based on the results of the examination, has been made.
• The exam is given to all applicants who have been offered employment in the same job category.
• The exam results are treated as a confidential medical record and kept in a separate file.
Employees. Employees may be given medical exams that are job related and consistent with business necessity. The results of the examination must be kept in separate files that are treated as confidential.
When basing an employment decision on the results of a physical exam, employers should be sure to carefully review the exam results and the requirements of the job in question before making a decision. The 8th Circuit Court of Appeals affirmed a jury verdict in favor of a job applicant after a review of the evidence showed that the employer required the applicant to take a physical exam, marked the exam results as passing, and then marked the results as not passing before it decided not to hire him (Chalfant v. Titan Distribution, Inc., 475 F.3d 982 (8th Cir. 2007)). In this case, the examining physician indicated that the employee passed the exam, but suggested additional tests if the job in question required lifting over a certain weight and extensive walking. At trial, the ...