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 Pre-Employment Concerns Under the Americans with Disabilities Act Silverman Bernheim & Vogel QUESTIONS TO AVOID ON JOB APPLICATIONS Employers may not use application forms to ask any questions which would be impermissible to ask during the job interview. Under the ADA, questions pertaining to an applicant's health or disability may not be included on an application. For example, the question: "Do you have any physical or mental limitations?" is forbidden. Similarly, an employer may not use an application form that lists a number of mental or physical conditions and asks the applicant to check off any of the conditions that she/he may have. Questions pertaining to worker's compensation history or prior sick leave usage may not be included on an application under the ADA. Thus, the question: "Have you ever filed a worker's compensation claim?" obviously is forbidden. NOTE: At the post-offer stage (but prior to the start of work), an employer may ask about an individual's worker's compensation history, prior sick leave usage, illnesses, diseases/impairments and general physical and mental health. However, if the individual is then denied the job, the employer must be ready to demonstrate that the reason for exclusion is job related and consistent with business necessity and/or that the individual posses a direct threat to himself or others. Employers would be well advised to avoid using on their multi-purpose application forms any travel related questions, such as: "Do you have a car," "Are you willing to travel," or "Do you have a driver's license?" Again, employers do not want to appear discriminatory, and many applicants with disabilities may not have a car or a driver's license, or be able or willing to travel. Additionally, such requirements would ordinarily not be job related for the vast majority of public sector jobs. To the extent that such a requirement is necessary for a particular job, the applicant could be asked to complete a supplemental application, or the question could be raised at the interview as part of a discussion of the essential job duties of the position. Moreover, for driving positions, an employer may want to use a supplemental application with additional questions pertaining to the applicant's driving record, car insurance, etc. PERMISSIBLE AND IMPERMISSIBLE PRE-OFFER DISABILITY RELATED INQUIRIES During the interview, employers may not ask a broad question about impairments that is likely to illicit information about a disability such as: "What impairments do you have?" However, employers may ask questions about an applicant's impairments if the particular question is not likely to illicit information about whether the applicant has a disability. For example, an employer may ask an applicant with a broken leg how he or she broke the leg. But such questions as: "Do you expect the leg to heal normally'?' or "Do you break bones easily?" would be disability related and therefore prohibited. When there is a known disability', the interviewer may not ask questions about the nature of the disability, the severity of the disability, the condition causing the disability, the prognosis regarding the condition or disability, or whether the individual will need treatment or special leave because of the disability. In some instances, an interviewer may perceive that an applicant has a disability, for example, when the applicant has a physical abnormality that is not a disability. Although it might be difficult to ignore physical abnormalities when interviewing or testing a job applicant, it is important to focus on the applicant's ability to do the job, not what the interviewer thinks the applicant can or cannot do. It is important to stick to objective performance-based evaluations. At the pre-offer stage, employers may not ask about an applicant's job related injuries or workers' compensation history, nor may the employer ask how many days an applicant was sick. These types of questions relate directly to the severity of an individual's impairment and are likely to elicit information about a disability. However, the interviewer may provide information on an employer's regular work hours, leave policies and any special attendance needs of the job and ask if the applicant could meet these requirements. Questions about whether an applicant can perform major life activities (e.g., walking) are almost always likely to elicit information about a disability. Therefore, these questions are prohibited at the pre-offer stage unless they are specifically about an ability to perform job functions. However, employers may ask questions to determine whether an applicant can perform specific job functions although these questions should not be phrased in terms of disability. For example, if a person has only one arm and an essential function of ajob is to drive a car, the interviewer should not ask if or how the disability would affect this person's driving. The person may be asked if he or she has a valid driver's license, and whether he or she can perform any special aspect of driving that is required, such as frequent long distance trips, with or without an accommodation. If an applicant indicates that he or she cannot perform an essential job function even with an accommodation, the applicant would not be qualified for the job in question. When an employer reasonably believes that an applicant will not be able to perform a job function because of a *known disability, the employer may ask that particular applicant to describe or demonstrate how he or she would perform the essential functions of the job, and with what accommodation (whether or not the employer routinely makes such a request of all applicants in the job category). If the known disability of an applicant will not interfere with or prevent the performance of ajob-related function, the employer may only request a description or demonstration by the applicant if it routinely makes such a request of all applicants in the same job category. * An applicant's disability is a known disability either because it is obvious or because the applicant has voluntarily disclosed that he or she has a hidden disability or that he or she needs a reasonable accommodation to perform the job. Employers may ask about an applicant's ability to perform marginal job functions. However, they may not refuse to hire an applicant with a disability because the applicant's disability prevents him or her from performing marginal functions. Employers may ask an applicant at the pre-offer stage whether he or she has certifications or licenses required for any job duties. Employers may ask an applicant whether he or she intends to get a particular job-related certification or license or why he or she does not have the certification or license. DRUGS AND ALCOHOL Covered entities under the ADA may prohibit the illegal use of drugs and the use of alcohol at the workplace by all employees and may require that employees not be under the influence of alcohol at the workplace. Employers may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee. Under the ADA, the term "qualified individual with a disability" does not include any employee who is currently engaging in the illegal use of drugs2 when the employer acts on the basis of such use. The ADA does, however, protect individuals who have successfully completed or are participating in a supervised rehabilitation program3 and are no longer using illegal drugs. (The policy objective here is to prevent employees from firing persons solely on the basis of their past drug use.) Thus, past addiction to illegal drugs or controlled substances is a covered disability under the ADA. 3A supervisory rehabilitation program does not include only a program that is medically supervised on an in-house basis. It may also encompass subsequent on-going supervisory programs that typically follow in-patient treatment, such as counseling or weekly NA meetings. Whether an employee is a current user must be assessed at the time the adverse employment action is taken. However, "currently" does not necessarily mean on the days or weeks before the employment decision. It means that the illegal use of drugs has occurred recently enough to indicate illegal drug use means use of drugs, the possession or distribution of which is unlawful under the Controlled Substance Act. that the employee is actively engaged.4 Moreover, with regard to the term "no longer using illegal drugs, that refers to long-term abstinence from drug use, not immediate abstinence. 4 By way of example, in Collings v. Longview Fibre Company, 1995 U.S. App. LEXIS 21709 (6th Cir. 1995), the court found that despite the fact that the employee was drug free on the date of discharge, his own admission of drug involvement during the weeks and months prior to his discharge indicated he was recently involved in drug-related misconduct. ~ Wormley v. Arkla, Inc., 871 F.Supp. 1079 (E.D. Ark. 1994) (employee's cocaine use in months before he entered rehabilitation was "current" for purposes of the ADA.) Thus, at the pre-offer stage, employers may not ask applicants any questions about their prior illegal drug use that are likely to elicit information about a disability. However, employers may ask applicants about their current illegal use of drugs because current drug use is not protected under the ADA. Questions about medicinal drug use are not recommended because they are likely to elicit information about a disability. Employers may ask applicants about their current, lawful drug use if the employer is administering a test for illegal use of drugs and an applicant tests positive for illegal drug use. For example, if an applicant tests positive for the use of a controlled substance, employers may lawfully ask questions such as: "What medications have you taken that might have resulted in this positive result?" or "Are you taking this medication under a lawful prescription?" Employers, at the pre-offer stage, may not ask applicants any questions likely to elicit information about alcoholism, which is a disability. Employers may not ask whether an applicant has ever been in an alcohol rehabilitation program. However, employers may ask whether the applicant drinks alcohol (but not how much) or whether the applicant has been arrested for driving under the influence if the job involves driving because these questions do not reveal whether someone has alcoholism. MEDICAL EXAMINATIONS Employers may not require a medical examination of an applicant at the pre-offer stage, but may condition a job offer on the results of a post-offer medical examination (which may include drug testing), if all entering employees in the same job category are required to take this examination, regardless of disability. If the individual is screened out because of a disability, the employer must show that the exclusionary criterion is job-related and consistent with business necessity. If the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a"direct threat" (a significant risk of substantial harm to him/herself or others, and the risk cannot be reduced below the direct threat level through reasonable accommodation). Because AIDS is a condition protected by the ADA, employers should not require HIV screening as part of their post-offer, pre-employment medical testing. Even if an applicant admits that he or she tested positive for HIV infection, unless there are other business-related reasons not to give the applicant the job, employers should not remove the applicant from consideration. While it might be tempting to do so, the employer will be risking a discrimination suit. Employers must keep any medical information they obtain on an applicant or employee confidential, except in the following situations: (1) supervisors may be told about necessary job restrictions of the employee and about necessary accommodations; (2) first aid and safety personnel may be told if the disability might require emergency treatment; (3) governmental, officials investigating compliance with the ADA must be given relevant information on request; (4) employers may give information to state workers' compensation offices, state second injury funds or workers! compensation insurance carriers in accordance with state workers' compensation insurance carrier in accordance with state laws; and (5) employers may use the information for insurance purposes (e.g., to administer a health insurance plan). Employers must keep medical information confidential even if someone is no longer an applicant (e.g., an applicant that was not hired) or is no longer an employee. Any medical information collected must be maintained on separate forms and in separate medical files. According to the EEOC, medical information may not be kept in an employee's regular personnel file, and employers should not place any medical-related material in an employee's non-medical personnel file. However, employers are not required to remove from their personnel files medical information obtained before the ADA's effective date (7/26/92). NOTE: Private employers may not give alcohol tests to applicants because tests to determine whether and/or how much alcohol an individual has consumed are medical. REASONABLE ACCOMODATION Under the ADA, job applicants may request a reasonable accommodation or modification to participate in the job application or interview process. Accommodations are to be individually tailored, on a case-by-case basis, to meet the specific needs of both the employer and the disabled job applicant. The accommodation does not have to be the best accommodation possible so long as it is sufficient to meet the needs of the individual being accommodated. For more information contact Lawrence M. Silverman. Copyright 2002 by Silverman Bernheim & Vogel - All Rights Reserved. << Back to Article Index |
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