Is Any Use of Medical Info Disparate Treatment?

By Bryan Stillwagon

If an employer administers a post-offer medical exam in accordance with the ADA and keeps the acquired medical information confidential in accordance with the ADA, may the employer then use the information without violating the ADA?  In Wetherbee v. The Southern Co., No. 13-10305 (11th Cir. June 11, 2014), the plaintiff argued that using the results of a medical test as the basis for rescinding a job offer violates the ADA, regardless of whether the candidate has a disability.  The court disagreed.

The employer rescinded the plaintiff’s job offer after his required medical exam revealed that he should not operate safety-sensitive equipment until his medication regimen had been shown to be effective.  Because his job offer was for a position that required work on safety-sensitive equipment, the company determined he could not perform the essential job functions.  The plaintiff alleged the employer violated 42 USC Sec. 12112(d)(3)(C) by using the disclosed medical information to discriminate “on the basis of disability,” but the plaintiff admitted he could not show he was disabled.  The court held that, regardless of whether the results were used “properly,” the use can be “discrimination on the basis of disability” only if the plaintiff is disabled.  Beware however that there might be other ways to use information improperly under the ADA.