Energy & Maritime Monthly - January 2016




It is commonplace in the energy and maritime industries for employers to require physical examinations in connection with an application for employment.  Commonly referred to as “pre-employment physicals,” these examinations are designed to ensure an applicant is fit for duty and perform the essential functions of a particular position.  In this regard, offers of employment are often made contingent on successful completion of a pre-employment physical and a finding of “fit for duty.” 

Recently, the Fifth Circuit Court of Appeals addressed the propriety of rescinding an offer of employment based upon a pre-employment physical.  In Cannon v. Jacobs Field Services North America, Inc., the applicant sought employment as a field engineer with Jacobs Field Services North America, Inc. (“Jacobs”).  A pre-employment physical, however, revealed the applicant had undergone a prior shoulder surgery, which the applicant freely disclosed.  As a result of the prior injury, the physician conducting the pre-employment found the applicant was not able drive company vehicles, was not able to lift, push or pull more than ten pounds, and was not able to work with his hands above shoulder level.  Based upon these findings, Jacobs rescinded its offer of employment. 

After filing a complaint with the Equal Employment Opportunity Commission (“EEOC”), the applicant filed suit against Jacobs under the Americans with Disabilities Act (“ADA”).  The district court granted summary judgment in favor of Jacobs, finding the applicant did not meet the ADA’s definition of “disability.”   The Fifth Circuit reversed, however, holding that the district court incorrectly determined the applicant did not meet the definition of “disability” under the ADA.

To succeed on a claim under the ADA, which prohibits discrimination on the basis of disability, the claimant must demonstrate he or she (i) has a disability (i.e., has an impairment substantially limiting the ability to perform a major life activity as compared to most people in the general population), or was regarded as being disabled; (ii) was qualified for the job; and (iii) received an adverse employment decision on account of the disability.  If the employer then provides a legitimate, non-discriminatory reason for its adverse employment decision, the claimant must prove the employer’s provided reason is simply pretextual. 

In Cannon, the Fifth Circuit noted the ADA considers “lifting” and “reaching” to be “major life activities.”   Because the applicant’s prior shoulder injury resulted in limitations on lifting and reaching, the applicant met the definition of “disabled.” 

The Fifth Circuit then considered whether the applicant, despite the disability, was still “qualified” for the job.  To be a qualified for a position, the applicant must show he could either (a) perform the “essential functions” of the job despite the disability; or (b) that a reasonable accommodation would allow him to perform those essential functions.  A function is considered “essential” if it bears “more than a marginal relationship” to the performance of the job.  In this particular case, the Fifth Circuit held fact questions remained concerning the applicant’s ability to perform the functions of driving a company vehicle and climbing a ladder.

Finally, the Fifth Circuit considered whether the employer offered a legitimate, non-discriminatory reason for rescinding the offer of employment.  In this case, the court held that, because Jacobs had rescinded the offer expressly as a result of the prior shoulder injury and had not offered some other explanation (such as finding a more experienced applicant or a subsequent decision to reduce its workforce), Jacobs had not offered a legitimate, non-discriminatory explanation. 

A fair reading of Cannon reveals the possibility that many limitations potentially identifiable during a pre-employment physical could be considered “disabilities” under the ADA.  Also, while the Fifth Circuit does not hold that pre-employment physicals are not per se improper, the prospective employer should carefully consider the “essential functions” of the particular position at issue in order to determine if any limitations identified in the pre-employment physical would, in fact, cause the applicant to not be qualified for that position.  The prospective employer should also consider whether any reasonable accommodations may be made to allow the applicant to perform those essential functions notwithstanding a disability.  While reasonable accommodations may be readily available in certain positions such as office jobs, other positions requiring a particular level of physical exertion or requiring working outdoors or subject to the varying conditions of the sea may not be as obvious.  Certainly, should the employer rescind an offer of employment expressly as a result of a negative pre-employment physical, any attempt to rely on a legitimate, non-discriminatory reason for rescinding the offer is virtually eliminated. 

A special note for Jones Act employers:  Although not at issue in Cannon, we note the General Maritime Law provides special protections for Jones Act employers when an applicant intentionally conceals a prior or existing medical condition from a prospective employer.  Commonly referred to as the McCorpen defense, a Jones Act employer can avoid its obligation to provide maintenance and cure benefits to a seaman who is injured or becomes ill while in the service of a vessel if that seaman intentionally concealed or misrepresented a prior or existing injury or illness during a pre-employment physical and that injury or illness is the subject of a subsequent claim for benefits.  Given the potential importance of the McCorpen defense, the Jones Act employer may consider ensuring its pre-employment physical provider expressly inquires about prior or existing medical conditions and requiring an applicant to complete a questionnaire or sign a statement attesting that he or she has not withheld any such information during the employment screening process.