Some medical inquiries are permissible during hiring
Are medical inquiries permissible during the hiring process?
Employers should be cognizant of their obligations under the Americans with Disabilities Act (ADA), which begin with the hiring process. There are several stages in the hiring process during which the employer’s limitations and responsibilities change. These stages are the pre-job offer, post-conditional job offer/pre-employment, and employment. During the pre-offer stage, the employer may ask whether applicants can perform the job functions with or without a reasonable accommodation. The employer may also ask applicants to describe how they would perform the job functions, as long as the employer makes this request of all of the applicants in the same job category. The employer is not permitted to ask disability-related questions. This prohibition is aimed at ensuring that an applicant’s hidden disability or history of a disability is not considered by the employer when evaluating whether to hire the applicant. A disability-related question is one that is likely to elicit information about a disability. The employer should focus on the applicant’s non-medical qualifications.
What are the employer’s obligations during the post-conditional job offer stage?
After the employer makes a conditional job offer to the applicant, the employer may ask disability-related questions as long as it does so for all entering employees in the same job category, regardless of the disability. The medical questions do not have to be related to the job. The employer may also ask the applicant whether a reasonable accommodation is needed to perform the job. If the individual is in need of a reasonable accommodation, it is permissible for the employer to request medical documentation to support the individual’s entitlement to the accommodation. This documentation should reflect the individual’s covered disability and functional limitations. The employer must keep the individual’s medical information confidential and separate from the personnel file.
Once the individual is hired and has begun working, how do the employer’s responsibilities change?
The employer may ask disability-related questions as long as they are “job-related and consistent with business necessity.” For an inquiry to be considered job-related and consistent with business necessity, the employer must show that it has a reasonable belief, based on objective evidence, that the employee’s ability to perform the essential job functions may be impaired by the medical condition; or the employee will pose a direct threat based on a medical condition. It is incumbent on employers to regularly train all personnel involved in the hiring process on the intricacies of permissible and non-permissible medical inquiries. Doing so fosters a disability friendly workplace and helps ensure that employment decisions are compliant with the ADA.
Paula Burkes, Business writer
Published The Oklahoman, April 30, 2019