• What You Know Could Hurt You: The ADA’s Limitations on Pre-Employment Medical Inquiries
  • April 11, 2011 | Author: Ashley Z. Hager
  • Law Firm: Troutman Sanders LLP - Atlanta Office
  • If you are involved in your company’s hiring process, you probably already know that the Americans with Disabilities Act (ADA) prohibits you from asking job applicants about their disabilities. You may also know that there are numerous questions that employers are allowed to ask applicants about their ability to perform job functions. But you may be unsure about how far you can go with these questions, so you avoid asking an applicant anything that could possibly lead to an answer relating to a medical condition. This article addresses the types of questions that you can (and cannot) ask a job applicant under the ADA. For information on the types of inquiries that can and cannot be asked of employees (as opposed to applicants) see "Speaking of Disabled: The ADA’s Limitations On Disability-Related Inquiries of Current Employees" in the Summer 2010 edition of Employment & The Law, available online at http://www.troutmansanders.com/lesummer2010-05/.

    Pre-Offer: Stick to the (Job-Related) Facts
    Before a conditional job offer has been extended, the ADA has one simple rule for employers: don’t ask applicants questions that are likely to reveal information about disabilities. Indirect questions like "how long have you been in a wheelchair?" are just as unacceptable as direct questions such as "do you have a disability?" Employers are still allowed, however, to ask a range of job-related questions that might (but are not intended to) reveal information regarding an applicant’s disability. For example, the following questions are generally acceptable during the interview process:

    • Can you perform the functions of the job, either with or without reasonable accommodations? While employers may ask questions such as this, they may not ask whether the applicant needs an accommodation to perform the job unless the applicant has an obvious disability or has voluntarily disclosed a disability.

    • Can you describe how you would operate the forklift to unload a truck? Employers may ask an applicant to describe or demonstrate how he or she would perform the functions of job. Be careful, though, as this is only acceptable if: (a) all job applicants are asked this same question, or (b) the applicant has an obvious disability or has voluntarily revealed a disability that would prevent the applicant from performing a job function. (For example, an employer may ask an applicant in a wheelchair whether he or she could meet a ladder-climbing requirement.)

    • You have requested an accommodation for your condition what type of accommodation would you need? If an applicant reveals a disability and requests an accommodation, employers may ask what kind of accommodation might be needed. Employers may also ask for documentation of the disability and the need for an accommodation.

    • Can you meet the attendance requirements of this job? Because there are numerous reasons why an applicant might be unable to meet attendance requirements, this question is not likely to reveal information about a disability and is therefore an appropriate inquiry under the ADA. However, an employer cannot ask why an applicant missed work at a prior employer or how much workers’ compensation or sick leave the applicant used.

    • Do you currently use any illegal drugs? An applicant’s current illegal drug use is not protected by the ADA, but an employer may not ask about past drug addiction or treatment. Similarly, an employer may not ask an applicant about prescription medications or legal drugs that he or she is taking.

    • Do you drink alcohol? While an employer may ask about an applicant’s use of alcohol, it may not ask questions designed to determine how much alcohol the applicant uses or whether the applicant has ever been treated for alcohol abuse, as alcoholism is considered a disability under the ADA.

    It is critical that employers always follow these rules, even if they feel certain that an applicant does not have a disability. Recent cases have established that, in most jurisdictions, an applicant does not need to be disabled under the ADA to sue an employer for asking impermissible disability-related questions.

    Post-Offer (But Pre-Employment): Ask Disability-Related Questions, But Be Careful!
    Once a conditional job offer has been extended to an applicant, but before the individual begins work, employers are free to ask disability-related questions (including questions about the individual’s workers’ compensation history), if the employer follows these rules:

    • The conditional job offer must be real. The employer must have already evaluated all non-medical information that is reasonably available before asking a disability-related question. This means that any medical inquiry must occur at the last stage of the hiring process - after any background checks, drug tests, and other pre-employment tests have been completed.

    • All employees in the same job category must be subject to the same questions. Thus, an employer cannot single out an employee it suspects may have a disability for further questioning about his or her medical condition.

    • Medical information must be kept confidential, with limited exceptions. One exception: supervisors may be informed of a new hire’s work restrictions.

    • Medical information cannot be used to disqualify an applicant unless the employer’s reason is job-related and consistent with a business necessity. For example, an employer may disqualify an applicant for manual labor if his or her work caused the applicant to suffer multiple back injuries, progressively worsening a pre-existing condition. In this situation, keeping the individual on the job would create a significant risk of further injury.

    Remember that the Genetic Information Non-Discrimination Act (GINA) prohibits an employer from asking questions about the medical condition or history of an individual’s family member - even at the post-offer stage.

    Employers may feel like they are walking a tightrope when asking job applicants about medical information. Now is a great time to audit your job application processes and hiring procedures to ensure that interviewers are not asking questions prohibited by the ADA. You may decide to instruct interviewers to avoid questions that relate to an applicant’s medical condition, leaving such questions to human resources professionals who have been trained on the rules discussed above for pre-employment medical inquiries.