The Americans with Disabilities Act prohibits employers from asking most applicants questions about their medical history before a conditional offer of employment is made. However, once this offer is extended, the employer may conduct a pre-hire medical exam or inquiry if it does so for all applicants for that position. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) affirmed dismissal of an ADA discrimination claim where the applicant failed to disclose medical issues on the pre-hire inquiry.

In Sigley v. ND Fairmont LLC, the plaintiff indicated during the pre-hire inquiry that he did not have any back issues and had never had back surgery. The medical history questionnaire stated that failure to provide accurate information would subject the applicant to disciplinary action including discharge. Several weeks after beginning employment, the plaintiff called out of work, stating that he was suffering back spasms relating to three back surgeries he had undergone over the past several years. The employer terminated his employment for providing false information on the pre-hire inquiry.

The plaintiff filed suit, claiming that he had been discriminated against based on his disability. The Fourth Circuit affirmed dismissal of the lawsuit, accepting the employer’s position that it had terminated the plaintiff based on dishonesty and not because of his back condition. The court noted that dishonesty is misconduct, even if it related to an underlying medical condition. In addition, the plaintiff never requested an accommodation and there was no evidence of bias on the part of the company based on his back condition.

Employers should be careful about using pre-employment medical examinations. If an applicant discloses a medical condition, this does not mean that the company can simply revoke the offer of employment. The employer would have to determine whether the condition means that the applicant cannot perform the essential functions of the job or presents a direct threat to themselves or a third party. The company would also have to determine whether there are reasonable accommodations that would allow the applicant to safely and effectively perform the job. The exams cannot be used as a way to screen out potential workers’ compensation claims based on speculation about an applicant’s risk of injury.

However, this case demonstrates that pre-offer medical examinations can serve as the basis for disciplinary action if an applicant clearly provides false information after being directly cautioned as to the consequences of such behavior.

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