Principles for Public Safety Employment

too costly to perform before a conditional offer is made. 31 Another example of a procedure that might not be reasonable to perform before a conditional offer is a test for illegal drugs. Employers should also note that if an applicant signs any instrument relating to the obtaining or holding of employment, such as a conditional offer, the employer must give a copy of that instrument to the employee if requested. 32 Leonel v. American Airlines 33 Flight attendant applicants who provided written applications and participated interviews, were extended a conditional offer of employment subject to passing a background investigation and a medical examination. Immediately following the interview, the applicants were directed to undergo a medical examination during which some of their blood tested positive for HIV, which was undisclosed by the applicants. The airline withdrew the conditional offers and the applicants brought suit for violations of FEHA and ADA. On appeal, the Ninth Circuit Court of Appeals sided with the applicants. The Court concluded that the comprehensive analysis by the airline’s medical personnel of the applicants’ blood samples beyond that normally undertaken as part of post conditional offer medical exams, without notice to or consent from the applicants, could constitute a violation of their privacy rights under California Constitution Act I, Sec. 1. Government Code section 1031.2 allows law enforcement agencies to collect non-medical or non-psychological information regarding peace officer applicants even after an agency has issued a conditional job offer if an employer can demonstrate that the information could not have reasonably been collected prior to the offer. 34 The EEOC has similarly provided informal guidance stating that a law enforcement agency may complete certain non-medical or non psychological portions of a background investigation after a conditional offer if an agency can demonstrate that waiting will cause an unreasonable delay in completing the entire hiring process. 35 An unreasonable delay may exist where a government agency is requested to provide records, e.g. criminal history records, and waiting for these records will significantly increase the length of the entire hiring process. 36 2. P RE -C ONDITIONAL O FFER I NQUIRIES AND E XAMINATIONS The “pre-offer stage” encompasses any hiring activity that occurs prior to making a conditional offer of employment, including but not limited to written job applications, employment interviews, background investigations, and the like. At this stage, an employer may not make a “disability-related inquiry.” Such an inquiry is defined “as a question (or a series of questions) that is likely to elicit information about a disability.” 37 Moreover, the restrictions on medical After Leonel , if an employer intends to do a medical examination, it should conduct its background investigation and other “non-medical” inquiries before extending a conditional offer of employment, unless the employer can demonstrate it could not have reasonably obtained the non-medical information earlier.

Principles for Public Safety Employment ©2022 (s) Liebert Cassidy Whitmore 16