Privacy Issues in the Workplace

complete the background checks prior to the medical exams, such as completing the background checks before the applicants arrived, flying the applicants back at a later date for their medical exam or having the medical exams performed by regional medical sites or the applicants’ own doctors. However, the Court did not actually rule that American violated the statutes but rather remanded the case to the District Court for a determination of whether American Airlines can prove that it could not reasonably have completed the background checks prior to initiating the medical exams.

If an employer wants to obtain or analyze non-medical information after a conditional offer has been made, the employer will have to prove that it could not have reasonably obtained that information prior to making the conditional offer. In that situation, after the conditional offer the employer should still attempt to obtain and analyze all of the non-medical information before obtaining medical information.

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4. A CCEPTABLE P RE -O FFER I NQUIRIES A job applicant may be asked to describe or demonstrate how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. 148 For example:

 “This job requires that you to be able to lift 50 pounds, can you do that?”

 “What are your qualifications and skills?”

“Do you ever use illegal drugs?” 149

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 "Can you meet our attendance requirements?"

5. E XAMPLES OF I MPROPER P RE -O FFER I NQUIRIES It is unlawful to include general questions regarding disability status on an application form or pre-employment questionnaire or in the course of the selection process. 150 Under the ADA and FEHA, an employer may not do the following in the pre-offer stage:

 conduct a medical examination of the applicant and/or inquire about the applicant’s medical background;

test for alcohol; 151

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 ask whether an applicant has a disability; or

 ask an applicant about the nature or severity of his or her disability. 152

For example, at the pre-offer stage, an employer cannot ask direct or indirect questions that are likely to elicit information about a disability, such as the following:

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 56