Employers are often unsure about what can be asked on an employment application or during an interview of a job applicant. Understanding what an employer may ask and what is proscribed by the Americans with Disabilities Act (ADA) is not an easy task.
Generally, the Americans with Disabilities Act prohibit Employers with 15 or more employees from asking about the existence, nature or severity of a disability prior to a conditional offer of employment. 42 USC § 12112 (c) (2) (B). Also, Employers cannot perform medical examination regarding an applicant’s disability prior to a conditional offer of employment. However, an applicant may be required to perform agility tests or tested for current use of illegal drugs. 42 USC § 12112 (d) (2) (B) and 29 C.F.R § 1630.13 (a).
During the pre-offer stage, an Employer may ask about the ability to perform job related functions with or without a reasonable accommodation without referencing any form of disability. 42 USC § 12112 (c) (2) (B). A good way of doing this is to reference a particular task and ask the applicant if they can perform the task.
On the other hand, at the post offer stage, an Employer may require a medical examination of all job applicants prior to the commencement of the job and condition the offer on the results of such offer. However, the medical examination must be of all employees regardless of disability. Moreover, the results must be collected and stored on separate forms and kept confidential.
Employers must also ensure that the examinations are not designed to screen out disabled individuals, but consistent with business necessities or carrying out job related functions. In addition, Employers must ensure that their health insurance benefits or plans do not discriminate in the care or terms provided to disabled individuals.
Correctly performing inquiries of applicants both pre and post offer of employment can be trick and having a good hiring policy can alleviate much of the compliance and litigation risks. If you have any concerns or questions about making sure that your hiring or drug testing policy complies with the ADA, then please do not hesitate in contacting us.