The previous article in this newsletter concerned an employer that potentially exceeded the restrictions of the Americans with Disabilities Act by asking impermissible questions about an applicant’s medical condition before extending a job offer. The purpose of this article is to provide a brief overview of those restrictions.
The ADA specifically provides that an employer may not require a pre-job offer medical exam of an applicant. After a job offer is extended to an applicant, of course, a medical examination may be required. Where medical conditions are found which may impact the employee’s ability to perform the functions of the job, the employer must then confer with the employee and determine whether a reasonable accommodation might be necessary.
Prior to the job offer, as noted above, an employer may make inquiries directed at an applicant’s ability to perform job-related functions. In addition, the ADA recognizes an exemption for drug tests. In fact, the ADA specifically provides that a pre-job offer test to determine the illegal use of drugs shall not be considered a medical examination. The employer may also ask follow up questions in response to a positive drug test result.
More specifically, if an applicant tests positive for illegal drug use, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs. Examples or questions that may be asked would include “What medications have you taken that might have resulted in this positive test result?” Or, “Are you taking this medication under a lawful prescription?” However, when an employer chooses to make such follow up inquiries, it must be aware that disability-related questions are still prohibited. The difficulty is that employers should consider that many questions about current or prior lawful drug use are likely to elicit information about a disability, and therefore would not be proper at a pre-job offer stage.
In short, the drug-test exemption from the prohibition against pre-job offer medical exams must not conflict with the rights of individuals who take drugs under medical supervision to refrain from disclosing their medical condition before a conditional offer of employment has been given.