We’re continuing our #NDEAM series “Disability Rights In the Workplace”! For this article, we cover what the Americans with Disabilities Act (ADA) allows and prohibits employers from asking about related to a disability during the hiring process.
Voluntary Disclosure of a Disability
Often job applicants ask if they must voluntarily disclose their disability to a potential employer. Under federal law the answer is generally no, unless the applicant wants a reasonable accommodation during the hiring process. If an applicant wants this kind of accommodation, they may need to provide information about the disability related to the need for the accommodation. In most other cases, applicants can choose not to disclose their disability.
What Employers Can Ask Before Hiring an Applicant
The ADA prohibits employers from asking a job applicant about a disability during the application and interview process. An employer cannot ask questions that could require an applicant to disclose medical information. For example, an employer cannot ask a job applicant about worker’s compensation clams, medical treatment, or the use of prescribed medications. Under the ADA an employer cannot ask a job applicant to undergo a medical exam. The ADA also restricts the use of tests during the hiring process which are designed to or could reveal a physical or mental impairment.
The ADA allows employers to ask applicants about how they would perform the main functions of a job. For example, an employer could ask a person with a hearing impairment how they would communicate with customers if a necessary part of the job. An employer could ask an applicant with limited dexterity to demonstrate how they would use a piece of equipment if using the equipment is necessary to perform the job. The ADA also permits employers to test for current illegal drug use.
What Employers Can Ask After a Job Offer
After an employer makes a job offer, they can ask for medical information prior to the person starting the job. Employers can condition a job offer on completing a medical exam. The employer can only legally withdraw a job offer based on medical or disability reasons if the person cannot perform the main job functions with or without a reasonable accommodation.
Employers cannot single out a person offered a job for a medical inquiry or exam, but must be consistent across a job category. For example, an employer would not violate the ADA if it required those offered a job as truck drivers to take a physical exam, but not those hired for the finance department. The employer would violate the ADA if it asked a specific person offered a truck driver position to take a medical exam but not all persons offered such a position.
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This article is for information purposes only, and is not intended to be legal advice for any claim. If you think you face discrimination, seek out competent legal advice.
