Module 5: What are Pre-Employment Do's and Don’ts?

In the past, some employment applications and interviews requested information about an applicant's physical and/or mental condition. This information was often used to exclude applicants with disabilities before their ability to perform the job was even evaluated. As a result, Congress established a process within the ADA to isolate an employer's consideration of an applicant's non-medical qualifications from any consideration of the applicant's medical condition.

Under the ADA, an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant. In this module we will differentiate between information an employer may obtain before it makes a job offer (Pre-Offer) and information an employer may obtain after it makes a job offer (Post-Offer).

Pre-Offer Do’s

Although employers may not ask disability-related questions, there are many questions that an employer may ask.

Employers may ask applicants:

• About their ability to perform job functions
• About non-medical qualifications and skills, such as education, work history, certifications and licenses
• If they can meet attendance requirements

Employers may:

• Ask applicants to describe how they would perform job tasks
• Ask applicants to demonstrate how they would perform job tasks
• Require applicants to take physical agility tests (but not medical examinations)

Generally employers should ask all job applicants the same questions. But an employer may ask a job applicant with a disability questions it does not ask other applicants when the employer could reasonably believe that an applicant will not be able to perform a job function because of a known disability. An applicant's disability would be "known" either because it is obvious, or because the applicant has voluntarily disclosed a non-apparent disability.

For example: A man who uses a wheelchair applies for a job that involves repairing equipment at different heights in a factory – from ground level to 15 feet high. His resume indicates he has the training and work experience to be qualified do the job. He arrives for an interview. The employer wonders how the job applicant will reach all the equipment that may need repairing. This is not a question that the employer asks other applicants but it is reasonable for the employer to ask this applicant how he will reach the equipment.

Pre-Offer Reasonable Accommodation Discussion

Many employers think they cannot ask any questions about reasonable accommodation before making a job offer, but that’s not true. Here are the circumstances when an employer may ask an applicant whether and what type of reasonable accommodation he needs:

1. The employer believes the applicant needs reasonable accommodation because of an obvious disability.
   
   For example: A woman who is blind applies for a job involving computer work. She comes to the interview with her guide dog and it is obvious she is blind. The employer may ask the job applicant if she will need reasonable accommodation to use the computer such as a particular software package or equipment. However, the employer may not ask questions that are unrelated to job functions such as, "Will you need reasonable accommodation to get to the cafeteria?"
   
   
2. The employer believes the applicant needs reasonable accommodation because of a non-apparent disability that the applicant has voluntarily disclosed.
   
   For example: A job applicant mentions during an interview that he is hard of hearing. The job involves telephone communication. The employer may ask the applicant if he will need reasonable accommodation such as a telephone headset that amplifies sounds.
   
   
3. The employer knows the applicant needs reasonable accommodation because she has voluntarily disclosed that she needs reasonable accommodation to perform the job.
   
   For example: An applicant who has cancer says during the interview that she will need a flexible schedule to attend doctors’ appointments. The employer may ask when the appointments are and how long they last.

Pre-Offer Don’ts

Pre-Offer employers may not:

• Require medical examinations
• Ask disability-related questions
• Ask about an applicant’s workers' compensation history
• Ask how many days an applicant was out sick in a previous job
• Ask whether an applicant will need reasonable accommodation on the job (except in the limited circumstance discussed above next) .

Post-Offer

After a job offer but before the person has started employment- this is called the post-offer phase - the door is somewhat open on what questions an employer may ask and what medical information it may obtain.

Post-offer, an employer may ask disability-related questions and require medical examinations.

An employer may ask about workers' compensation history, prior sick leave usage, physical and mental health, illnesses, diseases and impairments.

An employer may ask all applicants whether they need reasonable accommodation to perform the job.

Post-offer, all entering employees in the same job category must be subjected to the same examinations and inquiries.

All medical information obtained must be kept confidential. In Module 6 we’ll address confidentiality in more detail.

Be sure to check relevant state and local employment rights laws. Some state and local laws are more restrictive than the ADA concerning pre-employment, post-offer inquiries. For example under the Rhode Island Fair Employment Practices Act, it is unlawful prior to employment for an employer to elicit or attempt to elicit any information directly or indirectly pertaining to an applicant's disability.

Post-Offer Withdrawal

A job offer may be conditioned on the results of post-offer questions and medical examinations. However, if the employer withdraws the job offer after disability-related questions and medical examinations, the reason for the withdrawal must be "job-related and consistent with business necessity.”

Also, if a person is screened out for safety reasons, the employer must demonstrate that the person poses a "direct threat” to the health and safety of self or others, and that there is no reasonable accommodation that would lower the risk to an acceptable level. (We covered direct threat in Module 4).

Frequently Asked Questions

1. May an employer ask applicants whether they will need reasonable accommodation for the hiring process?

Yes. An employer may tell applicants what the hiring process involves (for example, an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

2. May an employer ask whether applicants can perform major life activities, such as standing, lifting, walking, etc.?

Questions about whether an applicant can perform major life activities are almost always disability-related because they are likely to elicit information about a disability. For example, if an applicant cannot stand or walk, it is likely to be a result of a disability. So, these questions are prohibited at the pre-offer stage unless they are specifically about the ability to perform job functions.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

3. May an employer ask applicants about their current illegal use of drugs?

Yes. An employer may ask applicants about current illegal use of drugs because an individual who currently illegally uses drugs is not protected under the ADA (when the employer acts on the basis of the drug use).

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

4. May an employer ask applicants about their prior illegal use of drugs?

Yes, provided that the particular question is not likely to elicit information about a disability. It is important to remember that past addiction to illegal drugs or controlled substances is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, the question is fine as long as it does not go to past drug addiction.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

5. May an employer ask applicants about their drinking habits?

Yes, unless the particular question is likely to elicit information about alcoholism, which is a disability. An employer may ask an applicant whether s/he drinks alcohol, or whether s/he has been arrested for driving under the influence because these questions do not reveal whether someone has alcoholism. However, questions asking how much alcohol an applicant drinks or whether s/he has participated in an alcohol rehabilitation program are likely to elicit information about whether the applicant has alcoholism.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

6. May an employer ask applicants to "self-identify" as individuals with disabilities for purposes of the employer's affirmative action program?

Yes. An employer may invite applicants to voluntarily self-identify for purposes of the employer's affirmative action program if the employer is undertaking affirmative action because of a federal, state, or local law that requires affirmative action for individuals with disabilities or the employer is voluntarily using the information to benefit individuals with disabilities.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

7. May an employer ask third parties questions it could not ask the applicant directly?

No. An employer may not ask a third party (such as a service that provides information about workers' compensation claims, a state agency, or an applicant's friends, family, or former employers) any questions that it could not directly ask the applicant.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

8. May an employer give psychological examinations to applicants?

Yes, unless the particular examination is medical. Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment (for example, those listed in the American Psychiatric Association's most recent Diagnostic and Statistical Manual of Mental Disorders (DSM)).

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

9. May an employer give vision tests to applicants?

Yes, unless the particular test is medical. Evaluating someone's ability to read labels or distinguish objects as part of a demonstration of the person's ability to do the job is not a medical examination. However, an ophthalmologist's or optometrist's analysis of someone's vision is medical. Similarly, requiring an individual to read an eye chart would be a medical examination.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations

10. After an employer has obtained basic medical information from all individuals who have been given conditional offers in a job category, may it ask specific individuals for more medical information?

Yes, if the follow-up examinations or questions are medically related to the previously obtained medical information. Example: At the post-offer stage, an employer asks new hire whether they have had back injuries, and learns that some of the individuals have had such injuries. The employer may give medical examinations designed to diagnose back impairments to persons who stated that they had prior back injuries, as long as the examinations are medically related to the injuries.

Reference: E E O C Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examination

Check Your Learning

Answer a series of questions associated with a workplace scenario.

Course Contents

• Course Introduction
• Module 1: Who has obligations
• Module 2: Who has rights
• Module 3: Reasonable Accommodation
• Module 4: Performance & Safety
• Module 5: Pre-Employment
• Module 6: Medical Information & Confidentiality
• Module 7: Complaints
• Resources