The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees and applicants with disabilities in all aspects of employment including hiring, promotion, and termination. It also requires employers to provide reasonable accommodations to workers with disabilities, unless the accommodation creates an undue hardship.
The ADA distinguishes between “pre-offer,” “post-offer,” and “during employment” disability-related inquires. In this post, we will discuss the “pre-offer” stage.
Before a job offer has been made, employers may not ask questions about an applicant’s disability or questions that are likely to reveal whether an applicant has a disability. For example, the following questions are off limits during an interview:
- Do you have any disabilities I should know about?
- What medications are you currently taking?
- Have you ever been injured on a job or filed a workers’ compensation claim?
- If hired, will you need to take any leave for medical reasons?
- How is your mental health?
- Are you an alcoholic, or do you attend any rehabilitation programs?
- Why are you in a wheelchair?
Instead, you should ask questions regarding the applicants’ skills and qualifications, such as:
- What education, skills, and training will help you succeed in this job?
- What certifications/licenses do you have?
- Where did you work last, and why did you leave?
Additionally, when an applicant has an obvious disability and you reasonably believe that the disability might pose the applicant difficulties when performing a specific task, you can ask whether the applicant will need “reasonable accommodations” to perform that task.
If the applicant answers no, then you should not ask further questions regarding accommodations. If the applicant answers yes, then you may ask the applicant about the type of accommodation needed, and you may ask the applicant to describe or demonstrate how the task will be performed.
Future posts will discuss permissible “post-offer” and “during employment” disability-related inquires. If you have any questions, please call a Troester Sharpe attorney.
Additional guidance is also available at the following link: https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees.
