The Americans with Disabilities Act makes it illegal for employers to discriminate against disabled individuals. To that end, the Act includes a provision that, prior to an actual offer of employment, an employer “shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.” The only inquiry that can be made is whether the applicant is able to perform job-related functions. In a case of first impression, the 11th U.S. Circuit Court of Appeals has held that a non-disabled employee can sue an employer for prohibited medical inquiry under the ADA. Harrison v. Benchmark Electronics Huntsville, Inc., 11th Cir., No. 08-16656, Jan. 11, 2010.

John Harrison was assigned as a temporary employee with Benchmark Electronics Huntsville, Inc. (BEHI) in 2005, working to repair and test electronic boards. At that time, if a BEHI supervisor believed that a temporary employee would meet the company’s needs, he could invite that individual to submit an application for permanent employment, which required undergoing a drug test and background screening.

In May 2005, Harrison submitted an employment application to BEHI at the suggestion of his supervisor, Don Anthony, and underwent the required drug screening and background check. At that point, Harrison had never been informed of any performance deficiencies or problems with his work attitude. Harrison’s drug screening came back positive which, under BEHI’s policy, required review by a Medical Review Officer (MRO). Anthony was contacted by BEHI’s HR department and was asked to “send [Harrison] her way.” Although HR did not tell Anthony about the positive drug test, Anthony discovered that information on his own, and informed Harrison that the test had come back positive for barbiturates. Harrison stated that he had a prescription for the drug, and Anthony asked him to produce it. Anthony immediately called the MRO and passed the phone to Harrison. Anthony remained in the room while Harrison answered a series of questions from the MRO, explaining that he had been diagnosed with epilepsy at age two, and took barbiturates to control the effects of that disease.

Shortly afterward, Harrison was informed by the MRO that his drug test had been cleared. However, Anthony told HR not to prepare an offer letter for Harrison. He further asked the temporary agency not to return Harrison to BEHI, stating that Harrison had “performance and attitude problems.” Harrison immediately was fired from the agency.

Harrison filed a lawsuit against BEHI under the ADA, alleging that the company had engaged in improper medical inquiry. BEHI moved for summary judgment which was granted by the district court. That decision was reversed by the 11th Circuit on appeal. The primary basis for the reversal was the appellate court’s answer to the question of whether a non-disabled individual can state a private cause of action for a prohibited medical inquiry under the ADA. (The EEOC had determined that Harrison’s epilepsy did not rise to the level of “disability” under the ADA. Although the 11th Circuit had not previously addressed that issue, it held – consistently with sister circuits which have specifically addressed that question – that the ADA precludes inquiries with respect to any applicant who has not yet received a job offer, whether or not the individual is disabled under the ADA.

This case raises an interesting issue. The ADA specifically recognizes an exemption for pre-employment drug tests (“a test to determine the illegal use of drugs shall not be considered a medical examination”), and allows an employer to validate the test results by asking about lawful drug use or possible explanations for the positive result other than illegal use of drugs. However, as this case makes clear, disability-related questions are prohibited. In fact, the Court in this case quotes the legislative history of the ADA to point out that the drug-test exemption “should not conflict with the right of individuals who take drugs under medical supervision not to disclose their medical condition before a conditional offer of employment has been given.” Therefore, while an employer may conduct follow-up questions in response to a positive drug test, there are specific limitations on the types of information that can be elicited by someone other than a medical officer. While BEHI’s procedure to have an MRO conduct follow-up questioning may have been consistent with the ADA, Anthony’s presence during Harrison’s responses and revelation of his medical condition was held by this Court to preclude summary judgment in favor of the company.