by Art Gutman Ph.D., Professor, Florida Institute of Technology
It is commonly known at this point that pre-offer medical exams or inquiries of any kind are illegal under the ADA. Of course, post-offer medical exams are legal, and it is also legal to act upon such information if there is a nexus to essential job functions. However, the EEOC believes that Aurora Health made illegal post-offer inquiries with respect to two provisional hires and, based on that information rescinded the offers (see http://www.eeoc.gov/eeoc/newsroom/release/9-12-26g.cfm). In this case, it isn’t the relevance of the information obtained, which by itself raises questionable issues, but more importantly, the manner in which it was obtained.
Here’s what happened. The EEOC alleges that conditional job offers extended to Kelly Beckwith and Charlene Helms should have been finalized because both were able to perform the essential functions of the jobs they were offered. Coincidentally, both had previously been patients at the hospital, and the hospital went into those medical records and learned that Beckwith was treated for multiple sclerosis (MS) and Helms from carpal tunnel disorder. According to the hospital, the offers were not rescinded because of the impairments, per se, but rather, because both applicants failed to disclose them during the post-offer medical exam. The EEOC alleges that Helms made the disclosure, and that Beckwith didn’t have to.
Delving further into Beckwith’s situation, the hospital alleges that she failed to disclose her use of medication for MS. There are two problems here. First, Beckwith had not experienced symptoms in recent years and was not taking the medication. The second is that the hospital examined records that should have been kept private, even though the application was for a job at that place.
As far as I know, this is a novel issue. Clearly, pre-offer examination of hospital records is illegal. The interesting question here, though, concerns whether it is legal to review patient records even in a post-offer exam. Additionally, the hospital made a decision that, in effect, regards Beckwith as being disabled after the fact when she might not be. Like I said … no case like it that I know. Should be interesting to see what happens.
October 31, 2012