By Jonathan K. Driggs, Attorney at Law
The Americans with Disabilities Act (ADA) imposes restrictions on what an employer may ask job applicants about their health status. This is an area where the law simply ties the employers’ hands about what they can and cannot ask (and probably for good reason, any one of us could have health issues we wouldn’t want to disclose to others unnecessarily). During the interview process, and before an offer of employment is made, the employer may not make inquiries into the applicant’s health status. Interviewers, however, may ask function based questions related to the particular job in question:
Permissible: “This job requires you to lift twenty pounds on a regular basis; can you perform this function?” (Or, “can you perform this function with or without reasonable accommodation?”)
Impermissible: “This job requires you to lift twenty pounds on a regular basis; do you have a back problem that would prevent you from doing this?” (The last phrase turns the question into a medical inquiry).
The only exception to the “no health questions” rule during the interview stage is if the applicant has an obviously apparent disability that has a strong likelihood of interfering with or preventing the performance of an essential job function. Great caution should be exercised before deciding to use this exception (and frankly, I would not use this exception unless all the requirements were clearly met and I felt I had no other option but to ask the question—and such a circumstance doesn’t happen very often).
For example, a possible example could be a visually impaired applicant with a seeing-eye dog who wants to be a bus driver (the applicant that is, not the dog!) In this case, the applicant could potentially be asked to describe or demonstrate how these functions will be performed. Such an inquiry, of course, should be made very respectfully.
Voluntary Disclosures by the Applicant about Health Issues
It is not uncommon for applicants to voluntarily disclose health problems during job interviews. Depending upon the circumstances, this may trigger a duty for the interviewer to respectfully discuss possible accommodation needs. Once the applicant discloses the medical problem, it is lawful for the interviewer to ask about the need for any possible accommodations that would help the person perform the essential functions of the job. This, of course, should be done in a very respectful manner.
Interviewers should not feel like they have to give “on the spot” answers to questions from applicants about whether a particular accommodation is possible, or whether the person’s medical problem would disqualify him or her from consideration. In such situations, the interviewer may want to make a general statement about the employer’s willingness to explore accommodation requests, and (as necessary) state that it is premature to make decisions about who or who isn’t the best qualified candidate for the job since the interview process is not yet completed. Once the interview is done, contact your HR or legal resource to get help in evaluating the specific situation.
What are the Rules Regarding the Hiring of Disabled Applicants?
Let’s say you have two applicants who appear to be equally qualified for a position. One is disabled—but appears to be able to perform the essential functions of the job with reasonable accommodation. The other applicant is not disabled. May you exclude the disabled applicant from consideration simply to avoid having to provide an accommodation? No. Doing so would violate the ADA. Must you prefer the disabled candidate over the non-disabled candidate simply because the first candidate has a disability? No.
The ADA attempts to “level the playing field” so that disabled candidates (who can perform essential functions of the job) are fairly judged based upon their actual qualifications for the job. Managers should be careful to avoid making discriminatory assumptions when considering the qualifications of disabled applicants. The most problematic situation I come across is when the disabled candidate is clearly the most qualified, but is mysteriously not hired.
Evaluating skill sets and exploring reasonable accommodation options can be very demanding work. Be sure to “reality-test” your decisions. Trust me on this, the US Equal Employment Opportunity Commission will review the situation from a different perspective than you do. Sometimes I find that employers are too quick to accept their initial way of thinking about a situation—rather than to make sure they are in full compliance with the law. While employers do have the right to hire the most qualified person for the job, great care must be exercised when making decisions about qualified disabled applicants.
This article should not be construed as legal advice. Copyright ©2013 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved. Jonathan K. Driggs is an employment law attorney with over 20 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
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