Hiring is one of the most critical steps in the employment process – where precision and diligence pay off. Is the company line on hiring: "At this point in our recruiting process, I am pleased to make you a conditional offer of employment. It is, important, however, that you fully understand the conditions of this offer as they are detailed below. . . our offer is contingent upon your successful completion of a drug test, a medical examination, and a satisfactory background check...."? Based on new case law, your company may need to rethink the hiring process.
Recently courts of appeals thought the country, specifically, the 9th circuit (California, Oregon, Arizona, Nevada, Idaho, and Montana, Alaska, Guam, and Hawaii), 7th circuit (Illinois, Indiana, and Wisconsin), and 5th circuit (Texas, Louisiana, and Mississippi) have questioned the lawfulness of contingent jobs based on medical exams (pre-employment physical) coupled with non-medical (drug screen and background check) exams under the Americans with Disabilities Act (ADA).
One of the cases involved an airline that first conducted initial interviews and then issued applicants conditional offers of employment, contingent upon passing both background checks and medical examinations. Rather than wait for the background checks, the airline immediately sent the applicants to its onsite medical department for the medical examinations where they were required to fill out medical history questionnaires and give blood samples. Each employee received a letter outlining that their job is contingent on passing a drug screen, medical exam, and background check.
While the court stated that the ADA recognizes that employers may need to conduct medical examinations to determine if an applicant can perform certain jobs effectively and safely, the ADA requires that such examinations be conducted as a separate second step of the selection process, after an individual has met all the job prerequisites. Therefore, in order it to be a true post-job offer physical, the employer must eliminate all other nonmedical contingencies (i.e., background check and drug screen) and then the employer can make a contingent job offer for only the medical exam.
So, what is an employer to do? Do not couple contingent offers with both medical and nonmedical contingencies:
Step 1 - Receive applications and narrow down those to be interviewed.
Step 2 - Interview the applicants and narrow down the select few to conduct background checks and drug screens.
Step 3 - Those that pass the background check and drug screens could then be made a job offer contingent solely upon the successful completion of the medical examination.
While the appeals court in your jurisdiction may not have yet ruled on this particular issues, it is never to early to become compliant, and never a better time than the new year.
Kelli Hill is an associate of Constangy, Brooks & Smith in the Macon office. Constangy, Brooks & Smith limits its practice to labor and employment law counseling to management and has done so, exclusively, since 1946, when it was founded in Atlanta, Georgia. Constangy, Brooks & Smith, now has thirteen offices in nine states and represents management throughout the United States.