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EMPLOYMENT LAW GUIDE: - page 51 / 134

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Employers must inform an applicant of the use of an ordinary consumer credit report

if the applicant is rejected for employment on the basis of the report.

In Massachusetts, employers who use consumer reporting agencies to perform credit

checks on job applicants must comply with the requirements of the Massachusetts Consumer

Credit Reporting law (Mass. Gen. L. c. 93, §§ 50-68) and in some cases the Fair Credit

Reporting Act (15 U.S.C. §§ 1681-1681t).

3.

Medical Examinations and Testing

Medical examinations and testing are permissible in limited circumstances. An

employer must make a conditional job offer before requiring a medical examination (and/or

making inquiries). A conditional job offer is an offer of employment to a job applicant

which is contingent upon the satisfactory results of a medical examination (and/or inquiry).

Prior to making a conditional job offer, the employer should have evaluated all relevant non-

medical information. Once a conditional job offer is made, the employer may conduct a

medical examination (and/or inquiry) and may condition a job offer on the satisfactory result

of a post-offer medical examination (and/or inquiry), to the extent it is limited to determining

whether the prospective employee, with or without reasonable accommodation, is capable of

performing the essential job functions of the position and further provided that all applicants

extended such a conditional offer are required to undergo such examination or inquiry.

Massachusetts employers are not allowed to require HIV testing as a condition of

employment. Physical and mental ability tests are only permitted to the extent such tests

measure only those abilities that are necessary to perform the essential functions of the

position, or that are job related and consistent with business necessity.

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