Do your hiring managers know the law when it comes to asking medical or health-related questions during job interviews? Are your job applications toeing the legal line?
The ADA says an employer’s ability to ask disability-related questions (or require medical exams) is analyzed in three stages:
- Prior to a job offer, the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job.
- After an applicant is given a conditional job offer, but before he or she starts work), an employer can make disability-related inquiries and conduct medical exams as long as you do so for all entering employees in the same job category.
- After employment begins, employers can make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
The most common mistake comes from hiring managers asking illegal questions during that first interview. But sometimes the mistakes are right there on paper.
Recent case: An investment company’s job application asked candidates to list “all disabilities, procedures and operations.” One candidate refused, but did mention she was a cancer survivor. She didn’t get the job, then fired off an ADA lawsuit. The court sent the case to a jury trial, citing the disability-related inquiry. (Katz v. Adecco, SD NY)
Bottom line: Review your job application or have your attorney help. The document may be old and out of legal compliance. Maybe it makes illegal inquiries about things like disabilities, marital status or age. Read every question as if you were a member of a jury.
Online resource: Find an explanation of when and how to ask about medical issues in the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the ADA.