Should Job Applicants And Employees Answer Employers’ Disability-Related Questions?
You arrive at a job interview and when greeting your potential employer, he notices your tinted glasses and asks, “Do you have a problem with your vision?” You hesitate to answer but he persists, asking if you would need any accommodations to continue the interview or perform the job. You tell him that your tinted glasses are not for a vision problem but rather due to light sensitivity. He begins to ask more questions about whether this would affect your ability to work, how much work time you lost at your last job, and whether you take any prescription medications. You hesitate to answer but feel intimidated and believe you won’t be offered the job if you don’t respond. After leaving the interview, you wonder if the employer was entitled to ask you such questions.
One way that the Americans With Disabilities Act (ADA) protects the rights of job applicants and employees is by limiting disability-related questions during the job application process and employment. This is to prevent employers from discriminating against qualified applicants and employees who have a disability.
Disability-related inquiries include direct or indirect questions relating to an applicant’s or employee’s actual or perceived disability as well as questions about prescription drug medications the employee is taking, or whether the employee has missed work in the past due to any medical condition.
When can – and can’t – an employer ask disability-related questions?
Only in limited circumstances can an employer ask broad-reaching questions of all employees such as inquiring whether they are taking any medications or undergoing treatment for any medical condition. Employees in positions affecting public safety may be required undergo a medical examination or disclose a medical condition or that could affect their ability to perform the job or pose a direct threat to the safety of the employee, coworkers, or the public.
Otherwise, prior to an offer of employment, an employer cannot make any disability-related inquiries of the applicant or require a medical examination. An employer can, however, make a conditional job offer and then make disability-related inquiries and require a medical examination so long as these procedures are uniformly applied to all applicants for the job. If an employer then withdraws the job offer, the reason must be job-related and consistent with business necessity.
After an employee actually begins working, the employer can make disability-related inquiries and require medical examinations only if they are job-related and a matter of business necessity. If the employer terminates the employee or removes him or her from the job, the employer must show the employee cannot perform the job functions or poses a direct threat to safety that cannot be addressed through reasonable accommodation.
What about internal job applicants?
An internal job applicant who applies for a different position within the same company is treated as an applicant for a new job.
An employer cannot ask an employee who applies for an internal job whether he or she would need a reasonable accommodation to perform the new job prior to making a job offer. Nor can the employer require the employee to undergo a medical examination before offering the new job to him or her.
Just as with a new outside applicant, only after making a conditional job offer can the employer ask disability-related questions and require a medical examination, and those requirements are uniformly applied to all applicants for the job. If the employer withdraws the job offer, it must show the reason is job-related and consistent with business necessity.
If you believe that your rights were violated during a job interview or that your employer inappropriately required a medical examination or asked disability-related questions, you should contact an experienced employment lawyer. Murphy Law Group focuses exclusively on employment law. Email us at firstname.lastname@example.org or call (267) 273-1054 for a free consultation.