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Newsletter Issue 7


Practical Approaches
to Resolving EEO/AA Problems
Issue #7
 
Pre-Employment
During the past year we received a number of inquiries concerning the impact of the ADA on pre-employment questions, such as: can you ask an applicant with an obvious disability such as an arm missing if the disability was caused by an accident or to ask how the disability happened. The reason for restricting employers from asking disability related questions during the pre-employment phase is to prevent the employer from concentrating on the disability of the applicant rather than on the applicant’s abilities.

Such a restriction does not prevent the employer from obtaining medical and related information necessary to evaluate the applicant’ or employees’ ability to perform essential job functions or to promote health and safety on the job. To protect individuals with disabilities from actions based on such information that is not job-related and consistent with business necessity, the ADA imposes specific and differing obligations on the employer at three stages of the employment process.
  1. Before making a job offer, an employer may not make any medical inquiry or conduct any medical examination.
  2. After making a conditional job offer, and before a person starts work, an employer may make medical inquiries, but may not refuse to hire an individual with a disability, unless the reason for rejection is job-related and justified by business necessity.
  3. After employment, any medical examination or inquiry required of an employee must be job-related and justified by business necessity. Exceptions are voluntary examinations conducted as part of employee health programs and examinations required by other federal laws.
The ADA prohibits medical inquiries or medical examinations before making a conditional job. This prohibition is considered a necessity since they are used to exclude people with disabilities from jobs they are able to perform. E.g. A policy that prohibits employment of any individual who has epilepsy, or diabetes, heart trouble, cancer or mental illness, or other “hidden disabilities” and who is rejected for a job, and which does not consider the ability of a particular individual, may violate the ADA.

Post-offer examinations may be necessary to determine if an applicant can perform certain jobs effectively and safely. The ADA allows such examinations as a second step in the employment process, after the individual has met all other job pre-requisites, provided the employer requires all entering employees in a particular job category, not just those with known disabilities or those whom the employer believes may have a disability. Post-offer medical examinations do not have to be given to all entering employees in all jobs, only those in the same job category.

ADA law interpretation - EEOC

Q.Can an employer apply a standard of conduct across the board even when it affects conduct that is the result of a disability?

A.Yes, the employer can apply the same rules to everybody, if it is in accordance with business necessity. E.g. this would apply to disorderly conduct, unruly behavior, destruction of property, etc.

Interviewing applicants can become so routine that we forget the legal implications attached to the employment selections process. Curiosity can motivate us to ask questions that are not job-related and could subject the company to serious penalties. A best practice process would require us to have a list of questions designed to elicit job-related information only and to stick to the list for all interviews. The purpose of an interview is to determine if an applicant is qualified for a job. The questions we ask should reflect our adherence to that standard.


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