The Americans with Disabilities Act requires employers to follow some strict do's and don'ts - especially during job interviews. Any question that asks about a job applicant's physical or mental disability is off limits. Find out what's legal and what's not.
Don't Ask: "Do you have a mental or physical disability?"
Under the ADA, an employer may not ask disability-related questions until after making a conditional job offer to the applicant. This helps ensure that an applicant's disability - including the history of a disability - is not considered before the employer evaluates an applicant's non-medical qualifications. Even if an employer holds off on disability-related questions or medical exams until after a conditional offer, if the applicant is later rejected, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.
Do Ask: "Will you be able to satisfy the job requirements? For example, this job requires heavy lifting. Can you carry boxes that weigh 30 pounds?"
Employers may ask about an applicant's ability to perform specific job functions. A person's disability may or may not affect how well the applicant is able to perform the job. Stay focused on the applicant's ability to do the job.
Don't Ask: "Since there are a lot of physical requirements in this job, we want to know if you have any medical illnesses or conditions before we offer you this position. Would you take a medical exam?"
An employer can't ask a job applicant about his or her current or previous medical conditions on a job application or during the interview. It's also illegal to require the applicant to take a medical exam before making a job offer.
Do Ask: "Describe or demonstrate how you would perform the job. I'd like you to lift a 30-pound box and carry it 20 feet."
A physical agility test or physical fitness test is legal - as long as the employer doesn't administer a medical exam as well. For example, a messenger service tests applicants' ability to run one mile in 15 minutes. At the end of the run, the employer takes the applicants' blood pressure and heart rate. Measuring the applicants' physiological responses makes this a medical examination, which is illegal.
After you make a job offer to an applicant, a job-related medical exam is legal. For example, firefighters and police officers are often required to have a medical exam. And pilots usually must undergo periodic psychological evaluations. That's fine as long as all employees must take the same exams.
Don't Ask: "Do you need reasonable accommodation to perform this job?" when an applicant with no known disability is being interviewed for the job and has not asked for any reasonable accommodation, either for the application process or for the job.
Again, it's considered a disability-related question.
Do Ask: about reasonable accommodation if the disability is obvious or the applicant brings it up.
An individual with diabetes applying for a receptionist position voluntarily discloses that she will need periodic breaks to take medication. The employer can ask questions such as: "How often will you need breaks? Do you need any other reasonable accommodations to perform this job?"
It's legal to ask about reasonable accommodations only if the employer believes the applicant will need reasonable accommodation because of an obvious disability or the applicant has voluntarily disclosed a hidden disability to the employer. Even then, the employer can only ask limited questions. The employer may not ask any questions about the underlying physical condition and can only ask questions that are job-related.
Don't Ask: "How many sick days did you take at your last job?"
This question relates directly to the severity of an individual's impairments.
Do Ask: "Can you meet this job's attendance requirements? How many days were you absent during your last job? How many Mondays or Fridays were you absent last year on leave other than approved vacation leave?"
These questions are fine because they are not likely to elicit information about a disability: there are many other reasons why someone cannot meet attendance requirements or was frequently absent from a previous job. An employer may also ask questions designed to detect whether an applicant abused his/her leave.
Don't Ask: "Have you ever filed a worker's compensation claim or been injured on the job?"
It's never OK to ask about previous job injuries or worker's compensation claims, because it's considered a disability-related question.
Do Ask: "Did you have any problems in your last job? Were you happy at your previous job?"
It's fine to ask an applicant about his or her previous work experience.
Don't Ask: "Do you take any prescription drugs?"
It's not considered fair to ask a job applicant about any medications they are taking until after an offer's been made.
Do Ask: "What medications have you taken that might have resulted in the positive test result? Are you taking this medication under a lawful prescription?" after a job applicant takes a drug test for the company and tests positive for illegal drug use.
Companies are allowed to require a drug test before making a job offer, and illegal drug use is not covered under the ADA. In order to validate the test results, it's OK to ask about lawful drug use or possible explanations if the applicant tested positive for illegal drug use.
Don't Ask: "Have you ever been addicted to drugs or had a drinking problem? Have you ever participated in a drug or alcohol rehabilitation program?" Although the ADA doesn't cover current use of illegal drugs, past addiction to illegal drugs or controlled substances is a covered disability under the ADA.
Do Ask: "Do you currently use illegal drugs? When is the last time you used illegal drugs? Have you ever been arrested for driving under the influence?"
These questions are fine as long as you're not trying to find out about any possible addiction problems.
Injuries Not Covered Under ADA
Some conditions, such as a broken limb, are usually not serious enough to qualify as
disabilities under the ADA. Questions regarding these types of conditions are permissible;
however, it is suggested that this line of questioning be avoided altogether since it
may be viewed as an attempt to obtain information about a disability and thus violate the ADA.
Information Courtesy of the Equal Employment Opportunity Commission (EEOC)
