It is really important to know that the Americans with disabilities act deals with disability related inquiries, medical exams and drug testing in very distinct ways. Basically the way it works, is that disability related inquiries and medical exams prior to a conditional job offer are prohibited, though you can address essential functions of the job. Everything is on the table after a conditional job offer. For example, an employer can make a conditional job offer subject to the person taking the physical. However, if employment is denied to an individual based on that exam, that denial must be job-related and consistent with business necessity and the performance of the job must not be able to be accomplished with reasonable accommodations. If the person is already an employee, the employer has the right to insist on a medical exam providing it is job-related and consistent with business necessity. Drug testing is okay. Finally, the ADA requires that medical information obtained on an employee or a prospective employee be kept confidential.

You do not want to confuse any of this. If you do, you may wind up in legal liability. In Harrison v. Benchmark Electronics Huntsville, Incorporated, 593 F.3d 1206 (11 Cir. 2010) an employer wound up raising a question of fact as to whether the employer had turned a permissible drug test and conditional job offer subject to a physical into an impermissible disability related inquiry. In this case, the plaintiff was a temporary employee. The company had a practice of screening temporary employee for potential permanent employment. The plaintiff was encouraged to apply for employment and consented to a drug test. The plaintiff was a lifelong epileptic and took barbiturates to control it. When the drug test came back positive, he was asked to explain in detail to the medical review officer with his supervisor in the room why the drug test came back positive. He did so stating that he had had epilepsy since he was two years old and took barbiturates to control it. He also stated the amount of the dosage and answered a series of questions. During that meeting, the supervisor he worked with as a temporary employee and desired to work for as a permanent employee was in the room as well. After this conversation, things went from bad to worse. The plaintiff did not get the job and subsequently sued the company.

In reversing the trial court awarding summary judgment to the defendant (summary judgment is where the court decides who wins or loses without going to a jury trial because it believed there is no genuine issue of material fact and can decide the case on the law), the court held a few things that are important here. First, a person does not have to have a disability under the Americans with Disabilities Act to be able to pursue a claim that the prohibition on disability related inquiries made prior to employment was violated (EEOC using prior amendments act rules had found that the plaintiff did not have a disability).. Second, a private cause of action exists for violation of the prohibition on preemployment disability related inquiries. Finally, a drug test is okay, but in this situation, a question of fact existed as to whether the drug test morphed into a prohibited preemployment disability related inquiry because the additional series of questions in the context that they occurred in were questions that were likely to elicit information about disability.

So where does this leave things:

First, this case illustrates the principle that the permissibility of disability related inquiries are very much dependent upon when they occur and that each opportunity to use disability related inquiries has its own set of rules with that and they should be observed.

Second, you should bulletproof your hiring process from disability related inquiries. For example, recently in the Chronicle of Higher Education a person noted that they used personality testing as part of the hiring process (from the article, it seemed pretty clear that it was done preemployment and not part of a conditional job offer). It is entirely possible that the questions in that personality testing were either questions likely to elicit information about a disability and therefore prohibited prior to a conditional job offer, or, alternatively, depending on how the questions were scored and by whom, were an impermissible preemployment medical exam.  For instance, many years ago, I had the opportunity to review a personality test. That test had questions on it such as, “are you frequently sad”.  A question like that could well elicit information about a person with clinical depression. Therefore, if you want to use such things as personality test as part of the hiring process, you would want to go over each question on that test to see if there any questions likely to elicit disability related information. If so, you might want to eliminate those questions. Of course, limiting those questions might jeopardize the tool itself. In that situation, the employer would have a choice as to whether it wants to risk ADA liability utilizing a tool with disability related inquiries in it or junk the test to prevent an issue of ADA liability.

3 Responses to Disability related inquiries, conditional job offers, medical exams, and drug testing

What is the most legal way to implement a conditional offer policy which allows the employer to rescind employment based on failure of the candidate to meet the medical examination process? What is required in the conditional letter to protect against discrimination law suits?

Thanks for submitting this question. It isn’t so much the letter of the conditional job offer that is at issue, rather it is the exam itself and then what the employer does with the information garnered from that exam. That is, there is nothing wrong with making a job offer being conditional on a physical exam, then having the exam done. Once that exam is done, the only way you can withdraw the conditional job offer is if the information from the exam shows that the denial of the conditional job offer is job-related, consistent with business necessity, and the performance of the job is not possible even with reasonable accommodations. Therefore, while the letter is straightforward, the employer is going to be better off the closer the exam itself matches the essential functions of the job in terms of whether that person can do those essential functions with or without reasonable accommodations.

Bill Goren

United States Supreme Court denied cert. in Owusu-Ansah v. Coca-Cola 715 F.3d 1306 (11th circuit 2013). It’s a nice case for trying to understand what job-related and consistent with business necessity might mean. The 11th circuit said that job relatedness is used in analyzing the questions or subject matter contained in a test or criteria used by an employer as a basis for an employment decision. Whereas, business necessity is larger in scope and analyzes whether there is a business reason making necessary the use by an employer of a test or criteria for such a decision.

This case is also significant because the 11th circuit has gone on record saying that a person does not have to have a disability in order to challenge a post employment medical inquiry. They came to that conclusion based upon a reading of that statute, which does not refer to a qualified individual but refers to an employee. Further, they said it made little sense to require an employee to demonstrate that he has a disability in order to prevent his employer from inquiring as to whether he has a disability.

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