April 25, 2005 Pre-Hire Medical Exams and Drug Tests Must Be The <em>Last</em> Step In The Hiring Process

A recent opinion by the Ninth Circuit Court of Appeals, which has jurisdiction over California, has emphasized the importance of completing all non-medical aspects of the pre-hire process and providing an applicant with a conditional job offer before asking him or her to submit to a medical exam or drug test. Employers that fail to follow this mandatory pre-hire sequence risk liability for disability discrimination.

In Leonel v. American Airlines, 400 F.3d.702, American Airlines made the mistake of sending three flight attendant applicants for pre-hire medical exams and drug screens before it determined whether they had successfully passed a required background check. Because of this simple mistake in the timing of the airline’s hiring process, the Court reinstated the applicants’ lawsuit against the airline and allowed their disability discrimination claims to be submitted to a jury.

In this case, after conducting in-person interviews, American Airlines gave conditional employment offers to the three prospective flight attendants and requested them to submit to a background check, medical exam, and drug test. All three applicants were HIV positive, yet none disclosed that fact in the medical history forms required as part of their medical exams. When the applicants’ blood and urine tests disclosed that they were HIV positive, the airline revoked all three employment offers, citing the applicants’ failure to disclose the requested information on the medical history forms.

The applicants then sued for disability discrimination under the federal Americans with Disabilities Act (“ADA”) and California’s Fair Employment and Housing Act (“FEHA”). Both the ADA and FEHA strictly regulate the sequence of an employer’s hiring process. Specifically, the ADA and FEHA prohibit medical inquiries or examinations until after a conditional job offer has been made to the candidate that has no other conditions attached to it besides the successful medical inquiry or examination. Thus all relevant, non-medical information must be evaluated by the employer in advance of a drug test or medical exam. This requirement is intended to prevent employers from learning of disabilities early in the hiring process and rejecting candidates from further consideration based on such information.

Here, although the applicants admitted that they had withheld specifically requested medical information, the Court ruled that the airline’s request for such information was unlawful because of its timing. The airline’s mistake was in sending the applicants for a medical exam before it had determined whether the applicants had successfully passed their background checks. The Court also emphasized that the ADA and FEHA permit prospective employees to “deliberately shield” their private medical information until they have a “real” job offer with no pre-conditions other than a successful medical review or examination.

What this Means

Employers must make sure that applicants have met all non-medical pre-requisites for hire and must provide applicants with a conditional job offer before they request any medical information, drug test or medical examinations. To ensure this hiring sequence is followed, employers should establish specific pre-hire procedures for all hiring personnel to follow. If the correct sequence is not followed in a particular case, and there is an issue with an applicant’s drug test or medical exam, the employer should consult with its employment counsel before revoking the employment offer.

This E-Update was authored by Denise Brucker and Rod Betts. For more information, please contact Ms. Brucker or Mr. Betts or any Paul, Plevin attorney at 619-237-5200.

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