Don't let your guard down when interviewing someone who doesn't appear to suffer from a disability. If you ask an illegal question, anyone can hit you with an Americans with Disabilities Act (ADA) lawsuit, even someone who doesn't have a disability.While the Americans with Disabilities Act (ADA) prevents you from asking questions aimed at finding out if the person has a disability, you can ask about the person's ability to perform the "essential functions" of the job. To do this, you need accurate and up-to-date job descriptions that outline the essential and nonessential job functions.
Finally, to protect against unauthorized use of sensitive data, keep medical records separate from the rest of the personnel file. File them in a secure place and make them available only on a strictly need-to-know basis. New privacy rules, which take effect next month, make this even more vital.
Recent case: Rent-A-Center required all-position candidates to take a written battery of tests. This included psychological questions that, among other things, asked about the person's medical conditions.
A group of workers filed a class-action Americans with Disabilities Act (ADA) lawsuit, claiming the company illegally used unauthorized medical information to make employment decisions, and that it had no policy to keep the test results confidential.
Rent-A-Center objected, arguing that the employees who filed the suit weren't disabled, so they couldn't file an ADA lawsuit. Not true, said the court. Employees need not be disabled to file an ADA lawsuit regarding improper medical exams and inquiries.
Court's reasoning: "It makes little sense to require an employee to demonstrate that he has a disability to prevent his employer from inquiring as to whether or not he has a disability." (Karraker v. Rent-A-Center Inc., No. 02-CV-2026, C.D. Ill., 2003)
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