Believe it or not, you can get into ADA trouble if you ask applicants questions about how many sick days they have taken or if they have ever filed for workers’ compensation, even if they do not have a disability. Find out the 8 medical questions you should never ask and what you can ask after you make a conditional offer of employment.
Q: We know that the ADA limits the types of medical inquiries we can ask applicants, and particularly we should not ask an applicant if he is disabled. But, what if an applicant has an obvious disability we think may affect his ability to perform the job? Or, can we ask applicants generally how many sick days they took at their previous employer? Are there any medical questions we can ask?
A: Even though the Americans with Disabilities Act (ADA) has been in effect for almost 20 years, many employers remain confused by its restrictions on medical inquiries, especially as it relates to job
applicants. Under the ADA, you are severely limited in what you can ask applicants about their medical conditions, even if they are not disabled and protected by the disability discrimination and accommodation provisions of the law. And, just to make the matter more interesting, different rules apply depending on whether you have given the applicant a conditional offer of employment.
The ADA’s restrictions are intended to prevent employers from making decisions based on an applicant’s hidden 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. Under the ADA, however, you may not ask any of these questions. In fact, you 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.
For example, according to the Equal Employment Opportunity Commission’s ADA Technical Assistance Manual, 5.5(b), you should never ask the following eight questions:
1. Have you been treated for any specific diseases?
Have you been hospitalized and why?
Have you ever been treated by a psychiatrist or psychologist for
any mental conditions?
How many days were you absent from work because of illness?
What prescription drugs do you take?
Have you filed for workers’ compensation or had any work-
Have you ever been treated for alcoholism or drug addiction?
Do you have any physical or mental conditions or impairments
that affect your ability to perform certain tasks or the particular job in
During the stage prior to a job offer, you should instead focus on the applicant’s ability to perform the job’s essential functions. For example, you may ask “Can you perform the essential functions of the job, with or without accommodation?” You also may ask an applicant to describe or to demonstrate the ability to perform the job, with or without an accommodation, if you ask all applicants for the job to give the demonstration, or if the applicant has an obvious disability that could affect his ability to perform the job. Other acceptable pre-offer questions include asking if the applicant has the necessary training, skills, or licenses to perform the job. You also may inquire if the applicant can meet the job’s attendance requirements. Further, you may ask how many days the applicant was absent from his former job, but not the number of sick days.
You also may measure non-medical factors with a pre-offer test. For example, you can determine an applicant’s honesty and work habits using a recognized personality test but you may not test for mental disorders or impairments.
In addition, you may inquire if an applicant needs a reasonable accommodation to participate in the pre-employment process, such as assistance in completing the application. However, you may not ask if
an applicant needs a reasonable accommodation to perform the job. There are two limited exceptions to this rule. You 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 you reasonably believe the applicant will need an accommodation; or (2) the applicant voluntarily discloses the need for an accommodation because of a disability. You still may not ask about the cause, prognosis, or extent of the disability at this stage.
(You should note that asking about illegal drug use and drug tests are not considered medical examinations and may be conducted pre-offer as well. However, many employers prefer to conduct them post-offer because of the restricted medical information (such as the current use of legal drugs and past addiction) that may be elicited prior to giving a drug test or to validate the test.)
Once you make a job offer, you may require medical examinations and make medical inquiries before the candidate begins work, and you even may condition the offer on the satisfactory outcome of these
examinations and inquiries. However, although the inquiries and exams do not have to be job-related, you must require all persons in the same category to take the exams and answer the inquiries. In addition, you must keep any medical information confidential and separate from the candidate’s personnel file.
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, you 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.
You also may withdraw the conditional offer of employment based upon the results of the medical inquiries, but only in limited circumstances. Specifically, you 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. Alternatively, an individual may be screened out on the basis of disability if he poses a “direct threat,” i.e., a
significant risk of substantial harm to himself or others, and the risk cannot be reduced below the level of a direct threat by reasonable accommodation. But, you cannot use medical examinations to “screen
out” individuals with particular diseases or conditions that may develop into disabilities in the future.
Even though you 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 regarded the employee as disabled or did not provide reasonable accommodation. Therefore, the amount of medical information gathered should be kept at a minimum and should relate only to job performance.