Inaccurate Information Given in Post-Offer, Pre-Hire Exam May Not Be Basis for Employee’s Later Discharge
By Ted Olsen
The Americans with Disabilities Act permits an employer to require an applicant to pass an employment entrance examination, if the applicant has received a conditional job offer, if the examination inquires into the ability of the applicant to perform job-related functions, if all such entering employees are required to undergo an examination, and if the information obtained is retained separate from other records and is treated as a confidential medical record. A physician who performs such a post-offer, pre-employment examination may not share information from an exam with the employer, even if it apparently disproves an employee's need for a disability accommodation, and an employer may not discipline an employee for giving contradictory information in the pre-employment exam and later on the job. Blanco v. Bath Iron Works, No. 2:10-cv-00429 (D. Me. July 6, 2011).
In Blanco, an applicant for employment - in a post-hire, pre-employment exam - completed a questionnaire about his health conditions. He did not disclose he had attention deficit hyperactivity disorder. During his employment, the employee had difficulty multitasking and asked his supervisors for an accommodation, for ADHD. The doctor who performed the exam told the supervisors that the employee had lied on his examination questionnaire; the employee denied lying, saying he did not understand the questionnaire included mental conditions such as ADHD. The doctor denied his accommodation request, stating "next time don't lie in your medical questionnaire and you may get accommodations."
The federal district court denied the employer's motion to dismiss the discharged employee's ADA case, ruling that the doctor's disclosures to the supervisors violated the confidentiality restrictions of the Act. 42 U.S.C. § 12112(d)(3)(B). (The only exceptions to the confidentiality rule are when the information is needed by supervisors to provide restrictions and accommodations, needed by first aid and safety personnel for possible emergency treatment of the individual, and required in a government investigation under the ADA.) Further, the Court ruled that the employee's discharge apparently violated the ADA, as the ex-employee alleged that he honestly believed he had completed the form accurately.
Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.
©2011 Sherman & Howard L.L.C. September 1, 2011