How Do You Protect Yourself From ADA Liability When Interviewing an Applicant?

Use the following guidelines to protect yourself and your company from a possible discrimination suit under the American with Disabilities Act: YOU MAY NOT:

  • Ask whether an applicant has a disability.
  • Inquire about an applicant’s workers’ compensation history.
  • Use an application form listing a number of potentially disabling impairments, and ask the applicant to indicate the impairments that may apply.
  • Ask how an applicant became disabled, or the prognosis of a disability.
  • Ask how often the applicant will be gone for treatment or take leave because of a disability.
  • Require a medical examination before you have made a job offer.
  • Administer any other type of pre-employment test to an applicant with a disability in a format that requires the use of the impaired skill, unless the skill is necessary to perform the essential functions of the job. (And, you must administer this test to all applicants for the same position, whether or not they have a disability.)
  • Refuse to hire an applicant with a disability because the applicant’s disability prevents performance of the marginal functions of the job.

YOU MAY:

  • Administer a physical agility test, as long as you give the same test to all similarly situated applicants regardless of disability. If a test screens out individuals with disabilities, the test must be job-related.
  • Describe or demonstrate a particular job function and ask whether the applicant can perform that function with or without a reasonable accommodation.
  • Require medical examinations after you have given a conditional offer of employment, but before the employee actually starts working.
  • Base an employment offer pending the results of a medical examination, provided that you subject all entering employees in the same category to such an examination.
  • Withdraw the job offer if no reasonable accommodation can be made. (This is if a medical exam given after a job offer reveals a disability that will affect the employee’s ability to perform the job’s essential functions.)
  • Require a pre-employment drug test.
  • Administer periodic physicals or other medical monitoring if required by medical standards or by law, or to determine fitness for duty.
  • Refuse to hire applicants with a disability if their performance of the job would pose a significant risk to themselves or others.

SACS Consulting and Investigative Services, Inc.
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Tim Dimoff, President, Speaker, Author, Expert web site:
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