Should offer be withdrawn?

TinaL · October 2002

During our pre-employment physical process, a new hire was informed she had a lump on her breast. She will have surgery to determine what the lump is and will not be able to work for about a month. This is a full time direct care position in a health care facility and we do consider it somewhat of a hardship to cover staffing. My instinct says to give her the month and hope it's nothing serious. But what if it is? I realize this probably doesn't fall under ADA at this time, but it could possibly in the future, right? Should we cut her loose now?

sonny · October 2002

This may be neither here nor there, but I have not heard of or experienced someone having to be off a month in the diagnostic phase for this problem!?

TinaL · October 2002

Good point. It's probably because of the lifting requirements of the job though.

Don D · October 2002

In my opinion, if the individual is not passed on the physical as being able to perform and ready for the job opening, you are not in violation if you withdraw the offer. I'm confused that you refer to her as 'a new hire'. The offer should be contingent on passing certain things like background check, company physical and drug screen. The offer, one would assume, is an offer of immediate employment, with those contingencies, not an offer of employment at a future date down the road or following a period of treatment or recuperation. If, however, she is already an employee then withdrawal of the offer is a moot point.

Gillian · October 2002

If the motive for the withdrawal of the job offer is the medical condition, you may have a problem. I think that most would understand the need to fill the position, but it might be a good idea to tell this person to come back after the month is up so that you can reevaluate your needs at that time. You should review how your State views discrimination regarding medical conditions. For us in California, "medical condition" is a protected characteristic.

Don D · October 2002

But, even in California, I would not think an applicant who is not available for work must be given special and extra consideration by the employer, such as putting the employer through the hardship of not filling the job until the applicant can report for duty. Clear me up.

TinaL · October 2002

Well, we have now decided to give her the time because it seems to be the right thing to do from the employee relations standpoint. We're still unclear as to why she is having a lumpectemy(sp?) with the longer recovery period as opposed to a biopsy first. But, it would seem heartless of us not to give her the time for this reason, especially since she has relatives that work here. I'm still not sure what we'll do if this becomes something that requires further treatment, though.

Gillian · October 2002

Correct. My approach would be a middle of the road approach. The job does need to be filled, it is not necessary to hold it open, but a charge could still be filed based upon the failure to hire because of the medical condition. With the middle of the road approach the person is not being told "no" and who knows what will happen a month from now. The person may be ready to go to work, assuming that work is available, or they may not come back at all. I think that if a charge is filed anyway that the enforcement agency would find the company approach to be a reasonable one.

ritaanz · October 2002

I have had several pre-employment physicals. Not once did they "check for lumps". What kind of physical do you require? Seems to me, this is more than the employer needs to know.

Don D · October 2002

Good point! Incidentally, three weeks ago, after a long discussion of pros and cons on the Forum, I wrote the clinics we use to advise them to not send the "long sheet" to us anymore. It identifies any and everything the patient has or ever did have. We do not want or need that information and do not want to be in possession of it. Just pass them or fail them based on the doctors knowledge of our jobs' requirements. I'm sorry this is off the subject a bit.

TinaL · October 2002

All we really require is a tuberculin test, tetanus shot, and that the Doc looks at the job description and signs a statement that the person has no conditions that would make the person unable to perform the duties. I have no idea why they felt for lumps.

Hatchetman · October 2002

I'm just going to respond to Ritaanz statement questioning why the occupational health doctor at the medical screening checked for lumps.

It is possible that the doctor was meeting his or her role as a doctor. Remember, even though he or she is employed to screen for employment purposes, the indivudal is still a doctor. Perhaps, he or she observed something that made him or her wonder. Maybe there's a medical profile that the doctor noticed the indivudal met that indicated the likelihood of cancerous lumps in the breast. Or, may be something he observed in the test results indicated a problem. Whatever.

I'm very sensitive to this type of situation. Years ago, I had to seek urgent care from my HMO for a medical issue. The urgent care doctor handled the urgency...and at the end, before he dismissed me, he ased if he could listen to my heart (the care I sought had nothing to do with my heart). He listened and then asked, "how long have you had an irregular heart beat?" I told him and he said, "I'd like to schedule you for some diagnostic exams. Subsequently they found that I had an aneurysm at my aortic valve that made it "incompetent" and I had the valve replaced. It was subsequently explained to me that the urgent care doctor saw that I fit a profile for what was called "Marfan's Syndrome" which invoves a defective aortic valve. But as it turned out, I didn't meet all of the conditions neccesary to say that I had Marfan's Syndrome. Nevertheless, the urgent care doctor "profiled" me and caught the aneurysm. That was over 16 years ago.

So, the company and of course the woman should be grateful for the doctor doing more than just the occupational health assessment, but meeting his role as a trained medical practitioner dedicated to helping people.

ritaanz · October 2002

I can understand your feelings and consider you a lucky man for the early detection. However, TinaL's response regarding what is included in the pre-employment visit doesn't indicate the same situation.

It reminds me of a doctor's visit I had to a dermatologist. I had a growth near my eyebrow. When the doctor came in to the examining room he said, "Ok take your clothes off and put this gown on". I said, "All this for a growth on my face?" He shrugged and said, "Sometimes it works." x:-)

Should offer be withdrawn?

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