Well, first take the test! Should you:
(a) Quick! Withdraw the offer. You can still dodge a bullet.
(b) Apologetically rescind the offer, but tell him he can reapply when he can pass the test with flying colors.
(c) Engage in the interactive process. Get more specific information that will allow you to talk about potential reasonable accommodation options.
(d) Pretend as if you never made him an offer. Destroy all evidence of the offer and never contact him again.
Although the answer is painful for employers, a recent decision out of the Fifth Circuit Court of appeals provides guidance on how employers should respond in order to avoid liability.
In Cannon v. Jacobs Field Services (5th Cir. 1/13/2016), Jacobs, a construction company withdrew an offer of employment made to a field engineer after a post-offer medical examination revealed he suffered from a severe rotator cuff injury for which he had been taking opioid pain medication.
The employee passed the Company’s drug screen. Following the post-offer exam, the Company doctor cleared him for employment provided that the employee (1) did not drive a company vehicle, (2) did not lift push, or pull more than 10 points; and, (3) not work with his hands above shoulder level. A Company manager testified that the field engineer job could not be done within those restrictions, “as the job site was located ‘in the mountains with rough/rocky terrain’ and ‘spread over several miles.’”
The Company then referred Mr. Cannon to its Occupational Health Department; he was instructed to provide medical documentation to verify he could use a ladder while taking prescription medication. Mr. Cannon provided the documentation two days later. That same day, the Company withdrew the job offer, citing Mr. Cannon’s lack of physical qualifications to do the job.
Cannon filed a charge with the EEOC and then a lawsuit in federal court in Texas.
The Company’s attempt to defend against Cannon’s claims failed in two notable ways. First, the Company argued that Cannon’s torn rotator cuff did not qualify as a disability, sufficient to trigger the protections of the ADA. In reversing the lower court, the Fifth Circuit denied the Company’s argument citing the ADA amendments, which took effect in 2009 and dramatically broadened what qualifies as a ‘disability’. The Court noted that even if Mr. Cannon was not disabled, the Company ‘regarded’ him as disabled.
Second, the Company argued that Mr. Cannon was not qualified to perform the field engineer position. That argument also lacked merit, the Fifth Circuit concluded. In so holding, the Court noted that “[L]ooking at the facts in Cannon’s favor, there is little argument to be made that [the Company] engaged in the interactive process the law requires. It rescinded the offer almost immediately after learning of Cannon’s impairment without further exploration of his impairment or even waiting for his responses to the questions posted by the Occupational Health Department.” The Company’s summary judgment was overturned and the case was remanded for further proceedings.
This case is a painful, but helpful reminder to employers. Not only did the 2008 ADA Amendments make it much easier for plaintiffs to establish a disability, it also changed the focus of defending employers in ADA-related litigation. Whether an individual is qualified for a position now hinges on the employer’s duty to fully engage in the interactive process—regardless of when the employer becomes aware of the impairment. The validity of the interactive process will serve as key evidence of the candidate’s qualifications and is a crucial step employers must take before making a decision to rescind an offer.