The Americans with Disabilities Act (ADA) prohibits discrimination against qualified applicants on the basis of a physical or mental disability. As of 1994, the act applies to all employers with 15 or more employees.
Before you make a job offer, the ADA allows you to ask questions about an applicant’s ability to perform job functions but prohibits you from inquiring about a specific disability. Nor can you ask questions that are likely to reveal a disability. For example, don’t ask an applicant what prescription drugs he or she takes; the answer may reveal a disability, such as diabetes or depression.
Also, you can’t ask whether the applicant is participating in an alcohol or drug rehabilitation program. Participation in such programs is protected by the ADA. You can, however, ask if the applicant is using any illegal drugs because the law doesn’t protect current users of illegal drugs.
You may test applicants for either physical or mental capacity to perform the job. Be sure to explain the test to the applicant ahead of time. If the applicant reveals a disability, you may ask if he or she requires an accommodation. If so, you and the applicant should determine together what reasonable accommodation is appropriate.
The key point to remember: The test must have a business necessity. Usually, this means that the test is gauging the candidate’s ability to perform an essential function of the job. Consequently, any accommodation for testing should be similar to what would be available to the person performing the job on a regular basis. Employers should keep this in mind when discussing reasonable accommodations for tests.
Note: Federal contractors and subcontractors that are covered by the affirmative action requirements of Section 503 of the Rehabilitation Act can ask individuals with disabilities to identify themselves on a job application form or by other pre-employment inquiry, to satisfy the affirmative action requirements of that section.
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