UNDER THE ADA, A CONDITIONAL OFFER OF EMPLOYMENT SUBJECT TO MULTIPLE CONDITIONS IS NOT “REAL”

Under the federal Americans with Disabilities Act (ADA) and Oregon disabilities law, an employer may not require applicants to undergo medical examinations or to disclose personal medical information until a conditional offer of employment is made. The conditional offer must be conditioned only upon the passing of a medical examination. If the offer is subject to other conditions, such as a satisfactory background check, then the request to disclose personal medical information and the medical examination may be found premature and violate the ADA and state disabilities laws.

In Leonel v. American Airlines, Inc, a federal appeals case arising out of California, three applicants were given offers of employment made “contingent upon successful completion of a drug test, a medical examination, and a satisfactory background check.” The applicants failed to disclose personal medical information regarding their HIV status during a pre-employment medical examination on documents submitted to American Airlines. After learning of the applicants’ HIV-positive status, American rescinded the conditional employment offers for failure to disclose the information.

The ADA prohibits medical examinations until after the employer extends a “real” job offer. In Leonel, the U.S. Court of Appeals for the Ninth Circuit (which oversees Oregon and Washington) held that American had not extended a “real” job offer to the applicants because the offers were subject to non-medical “components” of the hiring process, specifically “background checks, including employment verification and criminal history checks.” The court ruled that American could not require applicants to disclose personal medical information until they assured applicants that they had passed all non-medical stages of the hiring process.

Our Recommendation:

Employers frequently condition offers of employment on matters such as a polygraph test, personal interview, background investigation, completion of an application form, criminal record check or driver’s test. Under Leonel, such conditional offers are not “real,” and no medical examination may be undertaken until after all other conditions are satisfied.

A medical examination, if undertaken, should be the last step in the hiring process.

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Disclaimer: The materials contained in this advisory are for informational purposes only. Nothing in this advisory should be construed as legal advice or opinion. It is important that you consult an experienced attorney concerning your particular factual situation. Do not rely solely on this information.