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Hiring Tools and Information
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The ADA's Pre-Offer Restrictions:
The ADA prohibits covered employees about the existence, nature, or severity of a disability and from conducting medical examinations prior to making a conditional offer or employment. According to the EEOC's Enforcement Guidance on Pre-employment inquiries under the ADA this prohibition includes any inquiry likely to elicit information about a disability. This restriction is intended to prevent employers from making employment decisions bases on an applicant's hidden disability. For example, you may not ask applicants such questions as:
- Have you been treated for any specific diseases?
- Have you ever been hospitalized and why?
- Have you ever been treated by a psychiatrist or psychologist or for any mental conditions?
- How many days were you absent from work because of an illness?
- What, if any, prescription drugs do you take?
- Have you filed for workers' compensation or had any work related injuries?
- Do you have any physical or mental conditions or impairments that affect your ability to perform certain tasks or the particular job in question?
You may ask about an applicant's ability to perform the job. Thus, prior to making a conditional offer of employment, you may ask an applicant., "Can you perform the essential functions of the job, (with or without accommodation) as long as 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.
You generally may not ask whether an applicant specifically will need a reasonable accommodation to perform the job. However 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:
- The applicant has a disability that is either obvious or that the applicant voluntarily discloses, and you reasonably believe an applicant may need an accommodation; or
- The applicant voluntarily discloses the need for an accommodation because of a disability.
For example, you may ask an obviously visually impaired applicant if he will need reasonable accommodation to perform the functions of the job. If the applicant answers "no", you may not ask additional questions about accommodation but may ask the applicant to demonstrate how he would perform various job functions. Alternatively, if the applicant says that he will need accommodation, you may ask the applicant about the type of accommodation he will requite. However, you may not base hiring decisions solely on an applicant's need for accommodation.
Note that 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 medical information (such as the current use of legal drugs) that may be elicited prior to giving a drug test or to validate the test.
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