Last week, the EEOC announced that it had entered into a consent decree with Consolidated Edison Company of New York, Inc. Under the decree, the company will pay $800,000 and furnish other relief to resolve a disability discrimination suit filed by the Commission.
According to the EEOC’s complaint, the company’s doctors refused to medically approve qualified applicants to begin employment because of their disabilities, even though they could perform the jobs for which they applied. A “qualified applicant” with a disability is an individual who, with or without reasonable accommodation, can perform the essential functions of the job in question. The company’s doctors allegedly also imposed improper medical restrictions on existing employees.
The most telling – and surprising – allegation, however, was that the company required applicants to undergo medical examinations without first making them a conditional job offer. This is “ADA 101.” Employers must always give applicants a conditional job offer before making any disability-related inquiries or conducting medical examinations of applicants. Since its enactment in 1990, the ADA expressly has mandated that an employer:
[S]hall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature and severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
Conditional job offers must precede many other employment-related inquiries, such as background checks, drug tests, government-impose security clearances, and documented proof of eligibility to work in United States. It also is highly recommended that employers condition an applicant’s acceptance of an offer on the applicant’s agreement to intellectual property, trade secret, non-compete and other protective covenants.
Conditional written job offers: put them in writing, make sure they are clear, and double check them to ensure they are compliant. It’s just a good business practice.