Under the Americans with Disabilities Act, employers are not permitted to make medical inquires of applicants until after a conditional offer of employment is made. Once this offer is in place, employers can conduct medical examinations and ask questions about an applicant's medical history. Last month, the Third Circuit Court of Appeals upheld the termination of an employee determined to have lied about his drug history on a pre-hire medical questionnaire.

Reilly v. Lehigh Valley Hospital involved a security guard who was injured on the job and treated by the hospital's emergency room. During this visit, he disclosed that he had received treatment for drug addiction. The ER forwarded this information to the hospital's Human Resources department. After noting that the plaintiff answered "no" to this question on his pre-hire medical questionnaire, the hospital fired him for lying on this form. He sued, claiming discrimination under the ADA.

The Third Circuit disagreed, affirming dismissal of his claim. The plaintiff introduced no evidence that the hospital terminated him based on his former drug use or addiction instead of the false response to the medical inquiry. The court refused to consider the plaintiff's additional claim that the hospital had violated the ADA because the ER shared medical information with Human Resources. Although this claim presented significant legal issues for the hospital, it was never raised in the original complaint.

The ADA does not restrict the range of medical questions asked of post-offer applicants. However, the law does not allow employers to exclude applicants based on their responses, unless the medical condition prevents the applicant from performing essential job functions with or without reasonable accommodation. This case demonstrates that the questionnaires can serve other purposes. Employers should include language on such questionnaires making clear that falsehoods or omissions can result in revocation of an offer or termination of employment.