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Preemployment Questions Employers Can’t Ask
Pre-Offer Questions Should Target Ability
Post-Offer Stage Permits Medical Questioning
Review Your Preemployment Process
The ADA doesn’t just protect against
disability discrimination
— it
also tells employers exactly what they can and can’t ask about a
candidate’s medical condition. Use the tips from this article to
make sure your organization’s preemployment process is in
compliance.
The Americans with Disabilities Act
(ADA) has protected the rights of disabled persons since it was passed
in 1990, but many employers remain confused by its
restrictions on preemployment medical inquiries. Routine medical
questions employers used to ask, such as "How many days of work did
you miss for illness?," are prohibited. To help eliminate the
confusion, this article explains what preemployment medical
inquiries employers can and cannot make. The Editors’ analysis is
based on the ADA statute and supporting regulations and the Equal
Employment Opportunity Commission’s policy statements and its ADA
Technical Assistance Manual.
Preemployment
Questions Employers Can’t Ask
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The ADA applies to all employers
with 15 or more employees and prohibits employers from
discriminating against disabled people. The Act also specifically
prohibits covered employers from asking about the existence, nature,
or severity of a disability. According to its implementing
regulations, the ADA therefore restricts preemployment medical
examinations and inquiries that are likely to elicit information
about a disability.
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Before the passage of the ADA, many
employers questioned applicants about workers’ compensation
injuries, hospitalizations, use of sick leave, legal drug use, and
other health-related questions. Now, however, employers may not ask
any of these questions. In fact, employers may not inquire about any
physical or mental conditions or impairments that affect an
applicant’s ability to perform the job, or ask if an applicant needs
a reasonable accommodation to do the job. Even if the applicant has
an obvious disability, the ADA prohibits questions about the nature
and extent of the disability.
Pre-Offer
Questions Should Target Ability
During the stage prior to a job
offer, the employer instead should focus on the applicant’s ability
to perform the job’s essential functions. For example, an employer
may ask a stock clerk applicant, "Can you lift 50 pounds?" or
require the applicant to demonstrate or describe how he would
perform job-related tasks. Generally, employers must ask all
applicants for the position the identical questions and require the
same demonstration so that the employer does not treat disabled
candidates differently. However, if an applicant has a known
disability that might interfere with his ability to perform the job,
the employer may ask him to describe or demonstrate how he would
perform the job, even if other applicants are not asked to do the
same.
Other acceptable pre-offer
questions include asking if the applicant has the necessary
training, skills, or licenses to perform the job. The employer also
may inquire if the applicant can meet the job’s attendance
requirements. Further, the employer may ask how many days the
applicant was absent from his former job but not the number of sick
days. Employers also may measure non-medical factors with a
pre-offer medical test. For example, an employer may determine an
applicant’s honesty and work habits using a recognized psychological
test but may not test for mental disorders or impairments.
In addition, employers may inquire
if an applicant needs a reasonable accommodation in the
preemployment process, such as assistance in completing the
application. However, the employer may not ask if an applicant needs
a reasonable accommodation to perform the job. There are two limited
exceptions to this rule. The employer may ask about the need for an
accommodation at the pre-offer stage and what type of accommodation
will be needed if: (1) the applicant has a disability that is either
obvious or that the applicant voluntarily discloses, and the
employer reasonably believes the applicant will need an
accommodation; or (2) the applicant voluntarily discloses the need
for an accommodation because of a disability. The employer still may
not ask about the cause, prognosis, or extent of the disability at
this stage.
Drug tests are not considered
medical examinations and may be conducted pre-offer as well. Thus,
employers may test for illegal drugs but generally may not inquire
about current or prior legal drug use. However, employers may ask
about lawful drug use if the test produces positive evidence of
illegal drug use, in order to confirm the positive test. Employers
also may ask about an applicant’s illegal use of drugs. However,
since recovered addicts are protected by the ADA, employers may not
ask about the extent of the drug use since this information may
reveal past addiction.
Post-Offer
Stage Permits Medical Questioning
Once an employer makes a job offer,
it may require medical examinations and make medical inquiries
before the candidate begins work, and it even may condition the
offer on the satisfactory outcome of these examinations and
inquiries. Further, although they do not have to be job-related, the
employer must require all persons in the same category to take the
exams and answer the inquiries. The ADA allows for some variation in
the scope of the exams and inquiries. If an exam indicates that
further medical information is needed to determine if the candidate
can perform the job, the employer may do a follow-up examination or
make additional inquiries of that candidate as long as the
follow-ups are related to the previously obtained medical
information. The employer also must keep any medical information
confidential and separate from the candidate’s personnel file.
The employer may withdraw the
conditional offer of employment based upon the results of the
medical inquiries. However, the employer must be able to show that
the reasons for the withdrawal are job-related and consistent with
business necessity and that no reasonable accommodation would enable
the person to perform the job’s essential functions. For example, a
medical examination may reveal an impairment that would require the
candidate to miss work frequently for medical treatment, and the job
requires daily availability. In this case, the employer may be able
to revoke the offer since the candidate cannot perform one of the
essential functions of the job (attendance) and no accommodation is
possible. Alternatively, a medical examination might reveal that an
individual has a mild back deformity even though he currently is
able to do the heavy lifting that the job requires. This applicant
cannot be rejected under the ADA. The results of a medical
examination may not be used to disqualify people who are currently
able to perform the essential functions of a job because of "fear or
speculation" that a disability indicates a greater risk of future
injury.
Even though employers may make
fairly unrestricted medical inquiries at this post-offer stage, most
HR experts advise limiting their use. Information gathered from
these inquiries and exams may be considered evidence in a future ADA
claim alleging the employer knew about an employee’s disability and
did not provide reasonable accommodation or regarded the employee as
disabled. Therefore, the amount of medical information gathered
should be kept at a minimum and should relate only to job
performance.
Review Your
Preemployment Process
Several courts have held employers
liable for improper medical inquiries and assessed them large
monetary penalties even though no discrimination took place. To
prevent violations, HR professionals should review employment
application forms and standard pre-offer interview questions to make
sure they do not contain medical inquiries. Further, HR personnel
should train hiring managers about the ADA’s limits on medical
inquiries. These precautions should help protect the employer and
ensure compliance with the ADA.
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Personnel
Policy Service, Inc.
