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Also, §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL typically follows this protocol.

December 23, 2011

Pre-employment physical examination not employment


Pre-employment physical examination not employment
Rastaetter v. Charles S. Wilson Memorial Hospital, 436 N.Y.S.2d 47

An individual undergoing a required pre-employment physical examination is not to be considered an employee within the meaning of the Workers’ Compensation Law in the event the person is injured during the physical examination.

In Rastaetter the Appellate Division held that the principal factors to be considered in determining whether an employer-employee relationship exists under such law are the right to control, the method of payment, who furnishes the equipment, the right to discharge and the relative nature of the work.

The court then said “Clearly, these factors demonstrate that a pre-employment physical examination would not be covered by the Workers’ Compensation Law.”

The court also held that this was not a “try-out” situation, as the individual was not “trying out” for employment by working in any manner citing Matter of Smith, 4 AD2d 12 and Matter of Bode, 9 AD2d 969.

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