The Offer, the Medical Exam, and What “Direct Threat” Actually Requires

Start with the doorway, briefly, because this site has already walked you through it more than once. A conditional job offer is the one moment an employer may require a medical exam — and per the regulation, only if everyone entering that job category takes it. Our disclosure guide calls the conditional offer your strongest moment; our interview questions guide covers the same line, and Friday's staffing-firm article applied it to temp hires. The source for all of it is 29 CFR 1630.14(b): an employer “may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry) regardless of disability.” If you were singled out for an exam others in your category skipped, that threshold question is where your conversation with an attorney starts. This article is about what happens when the doorway was proper — and the offer still disappeared.

The Exam Can Be Lawful and the Decision Still Isn't

Here is the sentence pair that almost nobody — employer or applicant — seems to know, from 29 CFR 1630.14(b)(3), quoted in full because both halves matter:

“Medical examinations conducted in accordance with this section do not have to be ‘job-related’ and ‘consistent with business necessity.’ However, if certain criteria are used to screen out an employee or employees with disabilities as a result of such an examination or inquiry, the exclusionary criteria must be job-related and consistent with business necessity, and performance of the essential job functions cannot be accomplished with reasonable accommodation as required in this part.”

Read the two halves in order. The first half is a genuine grant to the employer: the post-offer exam itself can be broad. It can look at things unrelated to the job. Being asked wide-ranging medical questions at this stage is not, by itself, the violation people often assume it is. The second half is where the entire weight lands: the moment some criterion from that exam is used to screen out a person with a disability, that criterion has to clear two bars at once — it must be job-related and consistent with business necessity, and it must be true that the essential functions of the job cannot be performed with reasonable accommodation. Both. An employer who stops at the first bar — “the exam flagged something relevant” — has done half the analysis the text requires. The accommodation question is not optional garnish; it is written into the same sentence.

That is why a withdrawn offer should move your attention off the exam and onto the criterion. The exam was allowed to be broad. The decision was not allowed to be casual.

When the Reason Is Safety: Four Factors, Not a Feeling

The most common shape of a post-exam withdrawal is a safety rationale — some version of “we don't think it would be safe for you to do this job.” The regulation has a name for that rationale, and the name comes with a definition. Under 29 CFR 1630.2(r):

“Direct Threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a ‘direct threat’ shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”

Every phrase in that paragraph is load-bearing, so take them one at a time. “Significant risk of substantial harm” — two thresholds, stacked: a small risk is not significant, and a minor harm is not substantial. A generalized sense of caution meets neither. “That cannot be eliminated or reduced by reasonable accommodation” — the accommodation question again, built into the definition itself before anything else is weighed. “Individualized assessment of the individual's present ability” — a determination about you, now, doing this job; not about a diagnosis in the abstract, not about how a condition sometimes progresses, and not about what happened with someone else years ago. “Reasonable medical judgment… most current medical knowledge… best available objective evidence” — the assessment has an evidentiary standard; a hunch does not meet it. And then the four named factors: duration, nature and severity, likelihood, imminence. Note also what the definition covers: harm to the individual or others — the standard is the same whether the stated concern is about coworkers or about you.

One framing note we hold ourselves to, and it is more than style: a direct threat is a determination about a situation — this person, this job, these facts, this evidence — and never a label a person carries. The regulation's own structure says as much: the assessment is individualized, present-tense, and job-specific, which means it expires the moment any of those variables changes.

The Example Where the Employer Wins — Include It, Because It's True

If this article quoted only the tests, you might leave believing no withdrawal survives them. That would be false, and the regulation's own interpretive appendix says so with a worked example. Suppose attendance every day for a three-month project is a genuine essential function of the job. The entrance exam reveals a condition that, in the appendix's words, according to “reasonable medical judgment that relies on the most current medical knowledge,” will require treatment rendering the applicant unable to work for part of that period. “Under these circumstances, the employer would be able to withdraw the employment offer without violating this part.” The test was met, on facts: an essential function, evidence tied to this person's present situation, no accommodation that bridges it. We include the example for the same reason we quote the four factors — the standard is a real test with two possible outcomes, and knowing what a lawful withdrawal looks like is exactly what makes the questions in the next section worth asking. The answer you get either resembles that example, or it doesn't.

The Two Questions Worth Asking in Writing

Everything above converts into two calm, specific, answerable questions. If an offer is withdrawn after an exam, you are allowed to ask — politely, in writing, keeping a copy:

• “Which criterion from the examination did I not meet, and how is that criterion job-related and consistent with business necessity for this position?” This is the (b)(3) question. It asks the employer to name the thing the text requires them to have: a criterion, tied to this job.
• “What individualized assessment of my present ability to perform the essential functions was made, and was reasonable accommodation considered?” This is the 1630.2(r) question — and the accommodation clause appears in both provisions, so it belongs in the letter no matter which rationale the employer relied on.

Two things about those questions. First, they are not accusations — they are the vocabulary of the regulation handed back to the people who invoked it, and an employer with a solid basis can answer them easily (see the appendix example above). Second, the written answers — or the absence of any — are precisely what an employment attorney will want to see first.

What the EEOC Adds — and What Its Guidance Is

The Equal Employment Opportunity Commission, the agency that enforces this regulation, publishes enforcement guidance on disability-related inquiries and medical examinations (Notice 915.002, dated July 27, 2000, still posted as in effect). We cite it carefully, and you should too, because the document says two things about itself, on its own page, that most summaries skip. One: “The contents of this document do not have the force and effect of law and are not meant to bind the public in any way.” Two: it “was issued prior to enactment of the Americans with Disabilities Act Amendments Act of 2008 (ADAAA),” which took effect January 1, 2009. So the honest formula is: the regulation says what this article quoted; the EEOC reads the regulation in its guidance; and the guidance itself tells you it is a reading, not the law. When a decision about your livelihood turns on the difference, the quoted text above is the ground floor.

Where to Take It

This article deliberately stops at the water's edge of process. If the answers to your two written questions are missing, vague, or troubling, the path forward runs through an employment attorney, and the enforcement agencies — the EEOC federally, and in our state the New York State Division of Human Rights — exist for exactly these situations; a lawyer will walk you through what filing with either involves for your specific facts. What we can do at Innovative Placements is what a connector does: keep your search moving while the question gets answered properly — because a withdrawn offer, whatever its legal fate, is one door, and our whole model is that the offer is not the job and the search is bigger than any single employer. Your broader rights on the job are mapped in our workplace rights guide.