Pre-Employment Medical Exam Laws in Wisconsin

Federal law under the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) strictly regulates pre-employment medical examinations for covered employers (generally 15+ employees). The ADA prohibits medical examinations or disability-related inquiries before a conditional job offer is made. After a conditional offer, employers may require medical exams only if the exam is job-related and required of all applicants in the same job category. All applicants must receive the same exam regardless of disability status.

The Equal Employment Opportunity Commission (EEOC) enforces ADA provisions on medical examinations under 29 CFR Part 1630. Employers must keep medical information confidential, stored separately from personnel files, and disclosed only on a need-to-know basis. Medical information cannot be used as a basis for discrimination. Remedies for violations include back pay, front pay, compensatory damages, and attorney's fees. Employers with fewer than 15 employees are not covered by the ADA but may still face state law claims.

Wisconsin Statute § 111.32 prohibits employment discrimination based on disability, and § 111.35 establishes strict confidentiality requirements for medical records. Wisconsin's law aligns with and incorporates federal ADA standards but provides additional protections in certain respects. Wisconsin employers are subject to both state and federal restrictions on pre-employment medical exams.

Under Wisconsin law, employers cannot request medical information or conduct medical examinations before making a conditional job offer, consistent with ADA requirements. After a conditional offer, exams are permitted only if job-related and required uniformly. Wisconsin § 111.35 imposes stricter confidentiality duties than the ADA in some contexts: medical records must be kept separate, access limited to authorized personnel, and disclosure restricted to those with legitimate need-to-know. Violation of privacy rights can result in separate state tort claims in addition to disability discrimination claims.

Wisconsin covers employers with any number of employees under § 111.32, providing broader protection than the federal 15-employee ADA threshold. This means even small Wisconsin employers cannot discriminate based on disability or use pre-employment medical exams improperly. The state also protects disability-related genetic information under Wisconsin § 111.32(13), preventing employers from requiring genetic testing or inquiries. Remedies under Wisconsin law include compensatory damages, punitive damages (where employer conduct is malicious, reckless, or willful), and attorney's fees. The Wisconsin Department of Workforce Development and the Fair Employment Division enforce these laws.

Wisconsin law permits employers to require medical exams when genuinely job-related and necessary for workplace safety or essential job functions, provided the exam is required uniformly across all applicants for the same role. An employer can withdraw a conditional job offer if the exam reveals a legitimate medical contraindication—that is, a condition that makes the applicant unable to perform essential job functions even with reasonable accommodation—but the employer must still explore whether reasonable accommodation is possible under § 111.32.

Small employers with fewer than 5 employees may have slightly different burdens under state law compared to larger employers, but they are not exempt from discrimination rules. Certain occupations with specific medical requirements (e.g., commercial drivers with Department of Transportation certifications, healthcare workers with bloodborne pathogen standards) may have legitimate medical screening mandates, but these must be applied uniformly and cannot be used as pretext for disability discrimination.

Unions and collective bargaining agreements do not override these protections; union employees receive the same ADA and Wisconsin § 111.32 protections. Pre-employment drug testing is governed separately under Wisconsin § 111.375 and is permitted under specified conditions but is distinct from medical examinations. Employers may condition a job offer on passing a background check, but they cannot require a medical exam as part of the background check process before a conditional offer. If an applicant voluntarily discloses a medical condition before a conditional offer, the employer cannot use that information to exclude the applicant unless it is demonstrably related to essential job functions.

Step 1: Document Everything. Keep records of when the employer requested medical information, what was requested, and whether it occurred before or after a conditional job offer. Save all written communications (emails, forms, letters), notes from conversations with dates and times, job descriptions showing essential functions, and any communications about the job offer and withdrawal of the offer if applicable. If possible, request written documentation of why the exam was required and how results were used.

Step 2: Internal Complaint Process. Before filing externally, consider whether your employer has an internal complaint or HR department. Submit a written complaint to HR or management detailing the incident, the date(s), who was involved, and how you believe the medical exam violated your rights. Keep a copy for yourself and get proof of receipt if possible. While not legally required before filing a charge, this creates an internal record and sometimes resolves the issue. Internal complaints do not extend filing deadlines with the state agency.

Step 3: File a Charge of Discrimination. Contact the Wisconsin Department of Workforce Development, Fair Employment Division. You have 300 days from the discriminatory act to file a charge (longer than the federal 180-day deadline in non-deferral states). File online at dwd.wi.gov or submit a paper form via mail or in person. Required information: your name and contact details, employer's name and address, date of the alleged violation, clear description of what happened (e.g., "employer required medical exam before conditional offer"), and names of witnesses if applicable. You can file without an attorney. Simultaneously, you may file a charge with the EEOC if you prefer federal enforcement, though Wisconsin's Fair Employment Division and EEOC typically coordinate.

Step 4: Investigation Process. Once filed, the Fair Employment Division assigns an investigator who will contact both you and the employer for statements. The investigator may request copies of your application materials, job descriptions, the medical exam form or requirements, communications about the job offer, and records showing whether other applicants were required to take the exam. This process typically takes 60–120 days. The investigator will determine whether probable cause exists that a violation occurred. You will be notified of the outcome. If the investigator finds probable cause, the case may proceed to conciliation or hearing. If no probable cause is found, you have the right to pursue a private lawsuit in state court or request the EEOC issue a right-to-sue letter if you also filed federally.

Step 5: Consult an Attorney. Contact an employment law attorney experienced in disability discrimination and ADA cases, preferably licensed in Wisconsin. A consultation is worthwhile if: the employer's actions were clearly improper (e.g., exam before offer), you were denied the job based on medical results, the employer refused to explore reasonable accommodation, or the investigator found no probable cause but you believe the employer violated your rights. Many employment attorneys work on contingency (no upfront cost; fees paid from settlement or judgment). An attorney can demand records through discovery, negotiate settlement, represent you in conciliation meetings, or file a civil suit in Wisconsin state court (where you may recover compensatory and punitive damages under § 111.32) or in federal court under the ADA.