The Americans with Disabilities Act prohibits employers from asking applicants questions that could lead to the disclosure of a disability until a conditional offer of employment is made.  The ADA contains an exception for pre-offer drug tests, excluding them from the definition of medical examinations.  However, as demonstrated last week in an Eleventh Circuit Court of Appeals decision, the employer's actions following a positive test can be considered prohibited medical questions.

In Harrison v. Benchmark Electronics Huntsville, Inc ., the plaintiff was a temporary worker who applied for a permanent position with the defendant.  As part of the application process, he was required to be drug tested before an offer of employment was extended.  When he tested positive for barbiturate use, the plaintiff's supervisor asked him about the reasons for the positive result, and called the Medical Review Officer with the plaintiff to discuss it.  During this conversation, the plaintiff disclosed that he took prescribed drugs to control an epileptic condition, and the MRO cleared the test result.  When he was not ultimately offered the job, the plaintiff sued, alleging that he had been subjected to an illegal pre-offer medical inquiry under the ADA.

The Eleventh Circuit reversed a grant of summary judgment for the employer, concluding that the supervisor's actions violated the ADA's prohibition on pre-offer questions.  Employers may conduct pre-offer drug tests, and may ask about possible explanations for positive test results.  However, disability-related questions are still prohibited.  The follow-up questions must be limited to asking about possible reasons for the positive test, and may not ask about a specific medical cause.  Having the supervisor present while the MRO questioned the applicant resulted in this being deemed a prohibited medical inquiry.

Fortunately, most employers do not drug test employees until a conditional offer of employment has been given.  At this point, the employer is entitled under the ADA to make specific medical inquiries as long as there is a legitimate business reason for any adverse action taken as a result of the inquiry.