The ADA and Preemployment Medical Inquiries: A Prescription for Compliance

Preemployment Questions Employers Can’t Ask
Pre-Offer Questions Should Target Ability
Post-Offer Stage Permits Medical Questioning
Review Your Preemployment Process

The ADA doesn’t just protect against disability discrimination — it also tells employers exactly what they can and can’t ask about a candidate’s medical condition. Use the tips from this article to make sure your organization’s preemployment process is in compliance.

The Americans with Disabilities Act (ADA) has protected the rights of disabled persons since it was passed in 1990, but many employers remain confused by its restrictions on preemployment medical inquiries. Routine medical questions employers used to ask, such as "How many days of work did you miss for illness?," are prohibited. To help eliminate the confusion, this article explains what preemployment medical inquiries employers can and cannot make. The Editors’ analysis is based on the ADA statute and supporting regulations and the Equal Employment Opportunity Commission’s policy statements and its ADA Technical Assistance Manual.

Preemployment Questions Employers Can’t Ask

The ADA applies to all employers with 15 or more employees and prohibits employers from discriminating against disabled people. The Act also specifically prohibits covered employers from asking about the existence, nature, or severity of a disability. According to its implementing regulations, the ADA therefore restricts preemployment medical examinations and inquiries that are likely to elicit information about a disability.

Before the passage of the ADA, many employers questioned applicants about workers’ compensation injuries, hospitalizations, use of sick leave, legal drug use, and other health-related questions. Now, however, employers may not ask any of these questions. In fact, employers may not inquire about any physical or mental conditions or impairments that affect an applicant’s ability to perform the job, or ask if an applicant needs a reasonable accommodation to do the job. Even if the applicant has an obvious disability, the ADA prohibits questions about the nature and extent of the disability.

Pre-Offer Questions Should Target Ability

During the stage prior to a job offer, the employer instead should focus on the applicant’s ability to perform the job’s essential functions. For example, an employer may ask a stock clerk applicant, "Can you lift 50 pounds?" or require the applicant to demonstrate or describe how he would perform job-related tasks. Generally, employers must ask all applicants for the position the identical questions and require the same demonstration so that the employer does not treat disabled candidates differently. However, if an applicant has a known disability that might interfere with his ability to perform the job, the employer may ask him to describe or demonstrate how he would perform the job, even if other applicants are not asked to do the same.

Other acceptable pre-offer questions include asking if the applicant has the necessary training, skills, or licenses to perform the job. The employer also may inquire if the applicant can meet the job’s attendance requirements. Further, the employer may ask how many days the applicant was absent from his former job but not the number of sick days. Employers also may measure non-medical factors with a pre-offer medical test. For example, an employer may determine an applicant’s honesty and work habits using a recognized psychological test but may not test for mental disorders or impairments.

In addition, employers may inquire if an applicant needs a reasonable accommodation in the preemployment process, such as assistance in completing the application. However, the employer may not ask if an applicant needs a reasonable accommodation to perform the job. There are two limited exceptions to this rule. The employer may ask about the need for an accommodation at the pre-offer stage and what type of accommodation will be needed if: (1) the applicant has a disability that is either obvious or that the applicant voluntarily discloses, and the employer reasonably believes the applicant will need an accommodation; or (2) the applicant voluntarily discloses the need for an accommodation because of a disability. The employer still may not ask about the cause, prognosis, or extent of the disability at this stage.

Drug tests are not considered medical examinations and may be conducted pre-offer as well. Thus, employers may test for illegal drugs but generally may not inquire about current or prior legal drug use. However, employers may ask about lawful drug use if the test produces positive evidence of illegal drug use, in order to confirm the positive test. Employers also may ask about an applicant’s illegal use of drugs. However, since recovered addicts are protected by the ADA, employers may not ask about the extent of the drug use since this information may reveal past addiction.

Post-Offer Stage Permits Medical Questioning

Once an employer makes a job offer, it may require medical examinations and make medical inquiries before the candidate begins work, and it even may condition the offer on the satisfactory outcome of these examinations and inquiries. Further, although they do not have to be job-related, the employer must require all persons in the same category to take the exams and answer the inquiries. The ADA allows for some variation in the scope of the exams and inquiries. If an exam indicates that further medical information is needed to determine if the candidate can perform the job, the employer may do a follow-up examination or make additional inquiries of that candidate as long as the follow-ups are related to the previously obtained medical information. The employer also must keep any medical information confidential and separate from the candidate’s personnel file.

The employer may withdraw the conditional offer of employment based upon the results of the medical inquiries. However, the employer must be able to show that the reasons for the withdrawal are job-related and consistent with business necessity and that no reasonable accommodation would enable the person to perform the job’s essential functions. For example, a medical examination may reveal an impairment that would require the candidate to miss work frequently for medical treatment, and the job requires daily availability. In this case, the employer may be able to revoke the offer since the candidate cannot perform one of the essential functions of the job (attendance) and no accommodation is possible. Alternatively, a medical examination might reveal that an individual has a mild back deformity even though he currently is able to do the heavy lifting that the job requires. This applicant cannot be rejected under the ADA. The results of a medical examination may not be used to disqualify people who are currently able to perform the essential functions of a job because of "fear or speculation" that a disability indicates a greater risk of future injury.

Even though employers may make fairly unrestricted medical inquiries at this post-offer stage, most HR experts advise limiting their use. Information gathered from these inquiries and exams may be considered evidence in a future ADA claim alleging the employer knew about an employee’s disability and did not provide reasonable accommodation or regarded the employee as disabled. Therefore, the amount of medical information gathered should be kept at a minimum and should relate only to job performance.

Review Your Preemployment Process

Several courts have held employers liable for improper medical inquiries and assessed them large monetary penalties even though no discrimination took place. To prevent violations, HR professionals should review employment application forms and standard pre-offer interview questions to make sure they do not contain medical inquiries. Further, HR personnel should train hiring managers about the ADA’s limits on medical inquiries. These precautions should help protect the employer and ensure compliance with the ADA.