Published May 30, 2005
Which Comes First: Pre-Employment Medical Examinations or Pre-Employment Background Checks? Sequence Matters in Making Conditional Job Offers.
The Ninth Circuit Court of Appeals recently issued a decision that clarified the meaning of the term “conditional job offer” for purposes of claims filed under the Americans with Disabilities Act (“ADA”).  The ADA is a wide-reaching federal law prohibiting discrimination against qualified individuals with disabilities in (among other contexts) employment.  The ADA prohibits employers from requiring prospective employees to complete medical examinations or provide medical information, until after the employer has extended a conditional offer of employment; that is, an offer of employment that is conditional only upon the successful completion of such medical exams. Job offers that are also conditional upon other events, such as background checks, do not count as conditional job offers under the ADA.

In Leonel v. American Airlines, Inc., the Ninth Circuit considered a case filed by three American Airlines job applicants who were given conditional offers of employment pending completion of a background check and passing a medical examination.  Rather than wait for the background checks to be completed, American Airlines immediately referred each of the three applicants to its on-site medical department for medical examinations where they were required to fill out medical history questionnaires and give blood samples.  The results of the blood tests revealed what each of the applicants had failed to reveal on the questionnaire: they each had been previously diagnosed with AIDS.  American Airlines rescinded the conditional job offers on the grounds that the applicants had willfully omitted an important aspect of their medical histories. The applicants sued American, alleging that the medical exams had been conducted prematurely

The Ninth Circuit Court of Appeals agreed with the plaintiffs, holding that the ADA’s hiring sequence essentially requires employer to consider all non-medical information (such as job proficiency tests, general background checks, etc.) prior to extending a conditional job offer.  If all non-medical considerations convince the employer to extend a job offer, then the employer may then (and only then) extend an offer of employment that is conditioned upon the collection of medical information or the passing of a medical examination.  Offers conditioned on the receipt of medical and non-medical information are not, according to the court, “real” offers under the ADA.  The ADA insures that employees will not be required to divulge confidential medical information until they have in hand a genuine job offer.  If an employer can decide to rescind a “conditional” job offer for any number of medical or non-medical reasons, then the ADA’s protections against having to disclose private heath information or submit to medical examinations without a job offer firmly in hand is illusory.

The case for American Airlines would have been entirely different if it had decided to wait for the background checks to be completed before extending it’s conditional offer of employment and then requiring the medical examinations.  Any employer that requires applicants to submit to pre-employment medical exams should take note of the lesson in this case.  Employers requiring such information as a part of the hiring process should consult their attorney or a Human Resources professional to look for any potential problems in the hiring procedures.

This Article Should Not Be Construed As Legal Advice.  Alaska HR Consulting Can Provide Legal Advice Only As A Part Of A Personal Consultation.