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Pre-Employment Medical Exams and Pulling Job Offers - Wright vs Wrong

May 14, 2014

By Michael G. McClory

The Bullard Edge loves tackling questions from the (fictional) mailbag. This week we have a question from an HR manager who is caught between the law and her boss. She calls herself as “Ms. Wright” and her boss as “Mr. Wrong” and says they both work for a storage company that she identifies as “Stow Away” (I would like that as the name of a real company). It seems that information learned during a post offer, pre-employment physical has set up a “Wright versus Wrong” disagreement. Here is the question.

Ms. Wright’s Question:

“This is a bit of a pickle and I am going to use fake names so I don’t get in trouble. My company (Stow Away) is pretty cool. It is a mid-level storage company with locations up and down the Pacific coast. We offer a climate-controlled environment and 24-hour access to units accessible from the inside only. It is like a bank safe-deposit box in a way. Overnight we typically have one or two night watch persons at each location; it depends on the size of the facility. A night watch person usually does not deal with clients, but is there in case a client comes to the facility and also as a form of security. Last week we made a conditional job offer to an applicant (who I will call Jean LeGarde) and sent him for the standard post offer, pre-employment physical. We use doctors who understand our business and only ask them to tell us if the candidate is able to perform the job duties. They all come back ‘yes’ and the candidate then starts work. In LeGarde’s case, though, the doctor (a doctor new to us, I should add) said ‘maybe’ (which is not an option on the form) and then said LeGarde has ‘a sleep disorder like narcolepsy.’ Our VP of Operations, who is my boss (Iet’s call him Mr. Wrong), wants me to pull the offer and tell LeGarde that we have decided to just staff the location with one employee each night. I want to tell Mr. Wrong that we can’t do that and that if we do LeGarde may sue.  Am I right? 

The Bullard Edge's Response:

You may be right, Ms. Wright. I have real concerns about Mr. Wrong’s approach.

As you clearly know, the ADA and comparable state laws prohibit an employer from discriminating against a qualified individual with a disability because he or she has a disability. This prohibition applies in the application process, in hiring and discharge, in promotion and training, in compensation, and in the terms, conditions and privileges of employment. LeGarde may be an individual with a disability. 

Unlawful discrimination may take many forms and includes not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee. If there were a reasonable accommodation (one that is needed, would be effective, and does not present an undue hardship), then denial of such an accommodation likely would be unlawful discrimination.

Not every accommodation is reasonable. The “interactive process” is designed to help an employer and applicant/employee determine whether reasonable accommodation is possible. Essentially, the “interactive process" is an information gathering process and serves as the primary vehicle for identifying and achieving necessary and effective adjustments that will allow an individual with a disability to perform the essential functions of a particular job. An accommodation is not required if it is not needed, would not be effective, or would constitute an undue hardship.

I am mildly comforted by your description of Stow Away’s timing of the medical exams. Under the ADA and state law, the timing, purpose and use of a medical examination is important. Before a conditional offer of employment has been made, no medical examinations are permitted. However, medical examinations or inquiries are permitted after a conditional offer of employment, and before employment begins. Stow Away's timing is fine. 

The point of weakness may be in knowing how to proceed after receiving the results of post offer, pre-employment medical exams, especially results that require follow-up. You said that before LeGarde all candidates passed; this meant the gap in your process was hidden. In LeGarde’s case, though, the doctor provided information you did not request and caused Mr. Wrong to want to pull the job off. There is the gap in your process that was hidden.  It may be the case that pulling the offer is the appropriate action, but that is several steps away and you are not there yet. Under the ADA and state law an employer may only rescind an offer based on the results of the examination if (a) the person would be unable to perform the essential job functions with or without reasonable accommodation or (b) that there would be a direct safety threat. You do not have enough information on either of those categories. Thus, the appropriate action is to continue to engage LeGarde in the interactive process and obtain the information you need. Among other things, you will want to talk to LeGarde (tell him what you learned from the pre-employment physical, tell him what your concerns are, and see what he has to say) and, very likely, obtain additional current medical information relevant to his ability to perform the duties of the position (from LeGarde’s treating physician or an independent medical examiner).

Even with this information, I realize that you still need to figure out how to tell Mr. Wrong that he is wrong. You may want to show him a recent EEOC press release announcing that the agency filed a federal lawsuit against an employer that “offered the applicant a maintenance mechanic position at its Gallatin, Tenn., location, but did not follow through with the offer once it learned of his medical conditions.” EEOC’s lawsuit seeks injunctive relief prohibiting the company from discriminating against employees with disabilities, as well as lost wages, compensatory and punitive damages and other affirmative relief for the applicant. That ought to get Mr. Wrong’s attention and may inspire him to want to obtain training on disability, the interactive process and reasonable accommodation.

Good luck and best regards,

The Bullard Edge