• Use Caution When Questioning an Applicant's Health
  • April 13, 2010
  • Law Firm: Constangy, Brooks & Smith, LLP - Atlanta Office

  • Last month we explored the Americans with Disabilities Act limits on questions about drug use. This month I would like to expand on that subject by explaining ADA guidelines concerning medical inquiries.

    Employers sometimes ask how much medical information they may obtain from applicants and employees. The motives behind their inquiries are broad: curiosity, concern for another person's welfare, desire to control insurance costs and a desire to understand how a condition affects job performance are just a few of the reasons why employers ask such questions. The circumstances under which an employer may seek medical related information depends upon whether the information is being sought from an applicant or a current employee. Prior to a conditional offer of employment, an employer cannot make a medical inquiry. This means you cannot ask any question that is "likely to elicit information about a disability." Obviously, this covers questions about medical conditions and disabilities and any inquiry regarding the nature, existence or severity of an applicant's disability. Employers may ask questions that " ... have many possible answers ... and only some of those answers include disability related information." This gray area is where employers encounter the most difficulty.

    Employers may ask the following:

    — What are your qualifications and skills?

    — This job requires that you be able to lift 30 pounds. Can you do that?

    — Would you show me how you would lift 30 pounds? (This question must be asked of all applicants if it is asked at all.)

    — Can you perform these job related functions?

    — Can you describe how, with or without reasonable accommodation, you will be able to perform the specific job related functions?

    Employers should avoid asking the following questions:

    — Have you ever filed a workers' compensation claim?

    — Have you had any major illnesses over the last five years?

    — Do you have any potentially disabling conditions?

    — Have you ever been treated for an illness?

    — Have you ever been hospitalized?

    — Have you ever seen a psychiatrist or therapist?

    — How is your health?

    — Do you have any family members who have been treated for illnesses? What kind?

    At times, employers are confronted with applicants with an obvious disability. At the pre-offer stage, the general rule is that you cannot ask an applicant if he or she will need an accommodation to perform the job. However, if an applicant has a known disability or voluntarily discloses the existence of a disability, you may ask if the applicant needs an accommodation and, if so, what type of accommodation would be necessary to perform the job. If none is needed, the inquiry should end.

    After your offer of employment is accepted, and before an employee begins work, is the time when you have the most latitude. You may require a medical exam or make a disability-related inquiry so long as it is job-related and consistent with business necessity. A medical exam or disability related inquiry is considered job-related and consistent with business necessity when you reasonably believe that an employee's ability to perform the essential functions of a job will be impaired by a medical condition.

    Your options become more limited after work begins. You can still perform exams if new information causes you to question whether an employee can perform the essential functions of a job. You can also request an exam if you have evidence that the employee will pose a direct threat to his or her health or the health and safety of others. For example, if you have a mechanic who, while working on an airplane, becomes dizzy and disoriented, you may want to send him to a medical examination to determine his fitness for duty if you reasonably believe he may pose a threat.

    Bill Clifton is a management employment lawyer in Macon with the national labor firm of Constangy Brooks & Smith