Privacy Issues in the Workplace

The Ninth Circuit Court of Appeals noted that the ADA and the FEHA not only bar discrimination against disabled applicants, but also regulate the sequence of employers’ hiring processes. Specifically, these statutes prohibit medical examinations and inquiries until after the employer has made a “real” job offer to an applicant. 264 A “real” job offer under the ADA and FEHA means that the employer must have evaluated all “non-medical” information or be able to demonstrate that it could not reasonably have done so before making the conditional offer. By withholding medical information until the last stage of the hiring process, applicants can determine whether they were rejected because of disability or because of insufficient skills or bad references. Under the ADA, testing designed solely to determine the current use of illegal drugs is not considered a “medical examination.” 265 Similarly, the FEHA does not treat the current use of illegal drugs as a disability, and nothing in the FEHA or any other California statute prohibits or otherwise limits testing for illegal drugs. 266 If drug testing is not a medical examination, it would need to be performed pre-offer unless the test could not reasonably be performed pre-offer. Many employers test applicants for drugs that might be legal under some circumstances but could also impair an employee's job performance, such as prescription medications like Vicodin. Since the use of legal drugs or alcohol could be considered to be a medical examination, testing for those substances may only be performed after a conditional offer has been extended. 267 Whether drug testing is performed pre or post conditional offer, the EEOC is of the opinion that employers may ask follow-up questions about an applicant’s lawful drug use after an applicant tests positive for illegal drug use. 268 However, it is generally preferable to require an applicant to identify any substances that might result in a positive drug test before conducting the drug test, so that the applicant cannot later fabricate an explanation for the positive drug test. Moreover, the FEHA specifically prohibits any medical inquiry before a conditional offer has been made. Thus, if an employer wishes to conduct an effective drug test, the employer will likely need to conduct that test after a conditional offer has been made. In the post- Leonel world, an employer should carefully plan the sequence of its hiring processes, including drug testing. An employer should also carefully consider which drugs are going to be screened in its drug tests. An employer that tests for drugs that could impair an employee's job performance, but could also have legitimate lawful uses, such as Vicodin, will likely need to conduct the drug test after a conditional offer of employment has been made. If the employer is testing solely for drugs that are illegal under any circumstances, the testing can be performed before a conditional offer of employment is made. a. Pre-Employment, Conditional Offer Stage Pre-employment drug testing may be an effective means of deterring drug user applicants from applying for a position as well as detecting drug users who do apply. Because the consumption of alcohol is legally permissible, most employers do not specifically want to deter an applicant who consumes alcohol from applying for employment. However, a policy of conducting tests allows employers to obtain notice of potential alcohol abusers.

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