ILLEGAL PRE-OFFER INQUIRIES UNDER THE ADA

In a ruling handed down on January 11, 2010 (Harrison v. Benchmark Electronics [2010 U.S. App. LEXIS 632; 22 Fla. L. Weekly Fed. C 416] the 11th Circuit ruled that Benchmark violated the ADA by making an illegal medical inquiry prior to a conditional job offer. This is not a first --- at least six other circuit courts have issued this ruling. However, what is interesting in this case is that the violation occurred in the context of what started out as a legal inquiry. Harrison, a temporary employee applying for a permanent job, tested positive for barbiturates in a legal pre-offer drug test. Harrison explained to his supervisor (Anthony) was due to a legal prescription drug. So far so good. However, Anthony then called the Medical Review Officer (MRO), and the MRO proceeded to query Harrison on the phone while Anthony remained in the room. The MRO then asked Harrison a series of questions such as how long he had been disabled, how long he had taken the medication, etc. The MRO learned, among other things that Harrison was diagnosed with epilepsy at age two, and asked a series of questions related to his seizures. This is legal if done after a conditional job offer. The court ruled “While an exception exists allowing some follow-up questioning in the wake of a positive drug test, that exception is not limitless.”

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