Once a conditional offer of employment is given, the Americans with Disabilities Act permits employers to require a pre-hire medical exam as a final condition of employment. If the exam reveals medical issues that would preclude safe and effective performance of the job even with accommodations, the employer can withdraw the offer if it can demonstrate business necessity. Last month, the Eleventh Circuit Court of Appeals concluded that a plaintiff pursuing claims based on such withdrawal must prove that he or she is disabled in order to proceed.

In Wetherbee v. Southern Co., the plaintiff applied for a job as a systems engineer at a nuclear power plant. During the post-offer exam, he disclosed that he was bipolar and had recently declined recommended treatment from his doctor. The company withdrew his offer based on concerns over his ability to safely perform the job, and he sued, claiming discrimination under the ADA. The trial court dismissed the complaint on the basis that the employer had demonstrated business necessity.

The Eleventh Circuit affirmed the dismissal, but on other grounds. The court concluded that the plaintiff could not maintain an action based on a withdrawn job offer because he admitted that he was not disabled as defined under the ADA. The plaintiff argued that the medical examination provision of the ADA protects all applicants, and that he should be allowed to recover if he could show that he was regarded as disabled.

The court disagreed, noting that employers only violate the ADA when they use information gathered during a medical examination to exclude a protected disabled person from work. The particular ADA provision relied upon by the plaintiff does not extend these protections to persons allegedly regarded as disabled.

This case involved facts that occurred prior to adoption of the ADA Amendments Act. Its application may be limited due to changes in the definition of disability under ADAAA. Had the plaintiff applied for the position post-ADAAA, it is likely that his bipolar condition would have been deemed a qualifying disabling condition under the substantially relaxed standard imposed by that law.