Can We Ask About Back Problems Before Job Offer? Q&A

Q: Can we ask applicants about potential back problems? We have hired a couple of employees who had significant back problems that were not apparent during the interview process and now their problems are causing lost work and productivity.

 

A: As a general rule, asking applicants about their medical histories, including back problems, is a bad idea under the Americans with Disabilities Act (ADA). The ADA, the federal law prohibiting discrimination against the disabled and requiring employers to provide qualified disabled individuals with reasonable accommodations, also limits the types of medical inquiries employers can ask applicants and employees, regardless of their disability status.

 

Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct a medical examination until after the employer extends a conditional offer of employment to the applicant. This prohibition on preemployment medical inquiries includes any inquiry likely to elicit information about a disability. The restriction is intended to prevent employers from making decisions based on an applicant’s hidden disability. For example, according to the Equal Employment Opportunity Commission, employers may not ask such questions as:

 

(1) whether the applicant has been treated for any specific diseases;

(2) whether the applicant has been hospitalized and why;

(3) whether the applicant has ever been treated by a psychiatrist or psychologist or for any mental conditions;

(4) how many days the applicant was absent from work because of illness;

(5) what prescription drugs the applicant takes;

(6) whether the applicant has filed for workers’ compensation or had any work-related injuries; or

(7) whether the applicant has any physical or mental conditions or impairments that affect his ability to perform certain tasks or the particular job in question.

 

Thus, you should not ask about potential back issues or make any inquiries about past back injuries, etc., at that pre-offer stage. Instead, your inquiries at the pre-offer stage should focus on the applicant’s ability to perform specific job-related functions, not on any potential medical condition.

 

The ADA allows medical examinations only after a conditional offer of employment has been extended (and before the applicant begins employment) and only if certain other requirements are satisfied. Specifically, medical examinations are permitted after an offer if: (1) all entering employees in the same job category must undergo the examination; and (2) the information obtained is treated as a confidential medical record and is kept in a medical file separate from other personnel information. These post-offer examinations and inquiries do not have to be job-related. For example, you may require a full physical examination or ask questions that are prohibited in the pre-offer stage about previous illnesses, injuries, or medications. In addition, if the initial post-offer medical inquiry or examination indicates that additional information is needed from a particular applicant, you may do a follow-up examination or make additional inquiries as long as the follow-ups are related to the previously obtained medical information.

 

Thus, you can ask about back problems as long as you are using them only at the post-offer stage and follow the ADA’s requirements. However, most HR and legal experts suggest that you should limit the scope of follow-up questions and examinations to obtain only the information actually needed to make a final employment decision for two reasons. First, this medical information you gather about back problems may be considered evidence in a future ADA claim alleging that you knew about an employee’s disability and did not provide reasonable accommodation or regarded the employee as disabled or that you did not hire an applicant because of a disability or perceived disability.

 

Second, the ADA limits when you can withdraw a job offer based on the medical information you collect. The ADA allows an employer, in limited circumstances, to withdraw a conditional offer of employment based on information about a disability obtained from a permitted post-offer inquiry or medical examination if the criteria used are job-related and consistent with business necessity. However, you must be able to show that even with reasonable accommodation, the applicant would be unable to perform the essential job functions. Further, you may eliminate an applicant on the basis of a disability only if the individual poses a “direct threat” (i.e., a significant risk of substantial harm to himself or others) and the risk cannot be adequately reduced by reasonable accommodation.

 

This level of risk can be very difficult for an employer to demonstrate. For example, a medical examination might reveal that an individual has a mild back deformity even though he is currently able to do the heavy lifting that the job requires. According to the EEOC this applicant cannot be rejected under the ADA. EEOC guidelines further provide that 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. The employer must base an assertion that the applicant poses a “significant, current risk of substantial harm” on an individualized assessment that reflects current medical knowledge and the best available objective evidence.

 

Similarly, if applicants are rejected based on criteria such as “abnormal” back x-rays, epilepsy, or lifting requirements, and those criteria tend to screen out an entire class of individuals with disabilities, the employer must be able to show that the exclusionary criteria are job-related and consistent with business necessity. The EEOC also has taken the position that general “blanket” exclusions, such as those excluding anyone with a particular disease, usually will not meet ADA requirements because they do not involve an individualized medical assessment of the applicant’s current ability to perform the job safely and effectively.

 

However, a few courts have rejected the EEOC’s position and ruled that employers may use medical tests or inquiries that screen out individuals who are not disabled but who may develop a condition that would make them unable to perform a particular job. For example, in EEOC v. Woodbridge Corp., 263 F.3d 812 (8th Cir. 2001), the Eighth Circuit Court of Appeals determined that the employer did not regard 19 applicants as disabled when it excluded them from employment based on test results showing that they were more likely to develop carpal tunnel syndrome. The employer did not perceive the applicants as substantially limited in their ability to work; rather, it “regarded the applicants as unable to perform only one particular specialized job at one particular plant.”

 

Leave a Comment

Your email address will not be published. Required fields are marked *

Scroll to Top