PRE-EMPLOYMENT MEDICAL EXAMINATIONS:
EMPLOYERS AT RISK UNLESS PERFORMED ONLY AFTER
ALL OTHER CONTINGENCIES ARE SATISFIED

Many California employers conduct post-offer, pre-employment medical examinations that are related to the job for which the individual has applied. A recent court decision confirms that such a medical examination must be performed last and only after all non-medical contingencies have been satisfied.  

In Leonel v. American Airlines, Inc., the Ninth Circuit Court of Appeals recently held that under both the Americans with Disabilities Act ("ADA") and the California Fair Employment and Housing Act ("FEHA"), pre-employment medical examinations may be performed only after all other contingencies of a job offer have been satisfied. The Ninth Circuit further held that because blood testing necessarily implicates serious privacy interests, employees must be provided with a complete disclosure of all tests that will be performed in order for any consent to be valid.

In this case, Plaintiffs, all of whom were HIV positive, applied for flight attendant positions with American Airlines. After going through the interview process, American made offers to all three contingent upon passing a background check and a medical examination. However, before American performed the background checks, it had the applicants submit to a medical examination in which they were required to fill out medical history questionnaires and give blood samples. The questionnaires specifically asked whether the applicant had any blood disorders or HIV, and it warned that failure to make full disclosure would result in revocation of the offer.  

All three applicants failed to disclose their HIV positive status. Although the applicants gave blood samples, American did not obtain written consent from the applicants for the blood tests, nor did it disclose that a complete blood count would be run on the blood samples. The results of the medical tests eventually led to the disclosure that each of the applicants was HIV positive.

American then withdrew its conditional offers of employment based on the applicants' "willful omissions of fact on its employment applications." The applicants sued American for violations of the ADA and the FEHA, their privacy rights, and California's Unfair Competition Law.

The Ninth Circuit reversed the trial court's granting of summary judgment for American, holding that the ADA and FEHA prohibit medical examination and inquiries until after the employer has made a "real" offer. Specifically, an employer must complete all non-medical components of its application process before performing any medical testing. Because American had not completed all non-medical components of its application process (e.g., the background check), the medical examination was premature and violated the ADA and FEHA.

The Ninth Circuit rejected American's argument that it could withdraw its conditional offers based on the applicants' "willful omissions." According to the court, American had no right to ask the applicants for medical information in the first place. Thus, it could not withdraw its conditional offers on this basis.

The Court also held that the drawing and testing of blood could constitute a serious invasion of a legally protected privacy interest if the applicants had a reasonable expectation of privacy. Because American did not disclose all the tests it would be performing on the blood samples, there was a material issue of fact as to whether the specific tests performed by American on the applicants' blood samples were within the reasonableness of the applicants' expectations of privacy.

The Ninth Circuit thus provides employers with clear guidelines with respect to pre-employment medical testing:

·  Pre-Employment Examinations Must Be Performed Last. No pre-employment medical examination should be performed until all other non-medical conditions have been satisfied. Even if the employer does not evaluate the medical information until after non-medical contingencies have been lifted, the employer still violates the ADA and FEHA if it requests the medical information before making a determination on the non-medical conditions.

·  Full Disclosure And Written Consent For All Medical Tests. In performing any medical examination and, in particular, testing blood or urine samples, an employer should obtain written consent for all tests that will be performed. The Ninth Circuit made clear that absent such express consent, an employer may face liability in connection with any subsequent privacy claim brought by an applicant.

In light of this decision, employers should audit their hiring protocol to ensure compliance with the ADA and FEHA. In particular, medical examinations should occur last in the chronology of the hiring process, and it may be prudent to so state on the employment application form itself. In addition, employees should work with their health care providers and clinics to make sure that their patient authorization and testing consent forms make the full and necessary disclosures to the applicants being tested.