Can Employers Ask Job Seekers and Employees About Disabilities?

 photo Can-Employers-Ask-Job-Seekers-and-Employees-About-Disabilities.jpg The Americans with Disabilities Act (ADA) limits the types of questions that employers can ask job seekers and current employees. These vary based on a number of factors, including whether a disability is known to the employer. A disability would be known to an employer because it is a visible (obvious) disability, it was revealed directly by the individual or during a medical exam, and/or a reasonable accommodation was requested.

Another determinant of whether an employer’s inquiry is lawful under the ADA is the specific stage of the employment process during which the question is asked. Specifically, was it before or after a conditional job offer had been made? The answer to this question helps determine the amount of disability-related information that can be requested.

If Job Applicant Has No Known Disability


Here are some questions that CANNOT be asked before or during job interviews, or on employment applications, because they might reveal the presence of a disability.

  • Do you need a reasonable accommodation to perform the essential functions of the job as I've described them?
  • Do you currently have any health problems?
  • Do you have any of the following medical conditions?
  • Do you receive social security benefits?
  • Do you take prescription medication?
  • How many days were you sick last year?
  • Do you have a disability that would interfere with your ability to perform the job?
  • What physical or mental impairments do you have that would affect your job performance?
  • Will you require time off for medical appointments?
  • Have you had a major illness in the past 5 years?
  • Have you ever been hospitalized? If so, for what condition?
  • Have you ever been treated for mental health problems?
  • Have you ever been treated by a psychologist or psychiatrist? If so, for what condition?
  • Have you ever been injured on the job?
  • Have you ever filed for workers’ compensation?

Any questions that cannot be asked directly of the job applicant also cannot be asked of third parties, such as past employers or personal references.

An employer CAN ask if you can perform the essential functions of the job as they've been described, with or without a reasonable accommodation, as an answer of "yes" does not reveal a disability.

The following questions are also allowable under the ADA, even though they seem similar to the prohibited ones mentioned previously. The reason is that they are not designed to elicit disclosure of a disability, although the applicant's response may in fact reveal one.

  • Questions related to physical abilities, such as:

    • Can you lift a 25-pound box?
    • Can you sit or stand for up to four hours?

  • Questions related to attendance, such as:

    • Can you be here by 9:00 am every morning?
    • Can you work five days per week?
    • How many days did you take off work last year that were not scheduled or pre-approved in advance?
    • How many Mondays and Fridays did you take off work last year that were not scheduled or pre-approved in advance?

  • Other lawful questions might also unintentionally result in the disclosure of a disability. For example:

    • I noticed some employment gaps in your resume. Can you please explain them?
    • Our employees really need to be dependable. Is there any reason why you might miss work unexpectedly?
    • This job can be very stressful. How would you handle multiple assignments with tight deadlines?
    • The work environment is hectic. Are you able to ignore distractions and quickly re-focus after being interrupted?
    • This job requires that you answer telephone calls from customers, then summarize the conversations in our computer system. Are you able to do that?
    • You would be expected to proofread at least 100 typed pages per day. Were the requirements of your last job similar? If so, did you have any difficulties meeting those requirements?
    • Can you please describe how you would perform the essential functions of the job for which you are applying?
    • Can you please demonstrate how you would perform the essential functions of the job for which you are applying?

Because many responses unrelated to disability are possible, and disability disclosure is probably not the employer's intent, inquiries of this nature are legal. An employer should be consistent in asking these types of questions of all individuals applying for a specific job.

ALL of the previous questions are allowable after a conditional job offer is made, provided that they are asked of ALL individuals applying for the position in question, not just those with a known disability.

If Job Applicant or Employee Has a Known Disability


Once a disability becomes known, certain disability-related questions are allowable, specifically as they relate to essential functions and reasonable accommodations.

Under no circumstances should an employer ask about the cause, severity, nature, or prognosis of a disability. However, if there is a reasonable concern about the person’s ability to perform the essential function of the position, the employer can ask questions such as these:

  • Do you need any reasonable accommodations to perform the essential functions of the job? If so, please describe them.
  • Your previous position is very similar to the one you are applying for here. Did your past employer provide any reasonable accommodations that were particularly useful in helping you perform the job?
  • Can you please describe how you would perform, with or without reasonable accommodation, the essential functions of the job for which you are applying?
  • Can you please demonstrate how you would perform, with or without reasonable accommodation, the essential functions of the job for which you are applying?

If a person has requested an accommodation, the employer can ask clarifying questions about the job accommodation (but NOT the underlying medical condition). For example, "About your request for more frequent breaks, can you please explain how many breaks you would need during a work day, and how long each of these breaks would be?" Employers can also request medical documentation to better understand the need for accommodation and identify the most appropriate options.

With respect to individuals with known disabilities who are already on-the-job, an employer may ask about the potential need for accommodation because performance problems and/or safety concerns have emerged. Another reason is to explore how a potential change in essential functions would affect the employee's ability to perform his job. For example, a person who typically works from home due to a mobility impairment or mental illness might be asked if reasonable accommodation is needed in order to participate in an onsite meeting.

Again, any questions that cannot be asked directly of the job applicant also cannot be asked of third parties, such as past employers or personal references.

Medical Exams


The legalities of a medical exam vary depending upon the particular stage of the employment process. Specifically:

  • Prior to an offer of employment: Medical exams are not allowed.

  • After a conditional job offer: Medical exams are allowed, and can be general in nature (that is, not specifically related to the job), provided that the same type of medical exam is required for all entering employees in the same job category.

  • After employment begins: An employer may require medical exams ONLY if they are job-related and consistent with business necessity.

A job offer cannot be withdrawn solely because a medical exam revealed a disability. The employer would need to show that you are unable to perform the essential functions of the position even with a reasonable accommodation, or that you pose a significant risk of causing substantial harm to yourself or others. It would be unlawful for an employer to rescind the offer of a clerical position to a person with HIV, for example, as HIV cannot be transmitted through casual contact.

Note that drug testing CAN be performed prior to a conditional offer of employment, as current illegal use of drugs is not considered a disability under the ADA.

Confidentiality


The ADA sets forth strict confidentiality requirements. If you've disclosed a disability during an interview, or one was revealed as a result of a medical exam, the information can only be shared on a limited, need-to-know basis within the workplace. Relevant supervisors, for example, can be made aware that reasonable accommodations are being provided due to a disability.

For More Information


To learn more, including tips about disclosure and accommodation requests, don't miss our other posts related to job hunting and working with a disability!


 
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