General Practice, Solo & Small Firm DivisionBest of ABA Sections
SPRING 1998 - VOLUME 2, NUMBER 1
Labor and Employment Law
A Map for the Labyrinth: How to Conduct Job Interviews and Obtain Medical Information Without Violating the Americans with Disabilities Act
By Teresa L. Clark
This article synthesizes the ADA’s limitations on disability-related inquiries and medical examinations and provides practical suggestions for ensuring compliance with this part of the ADA. Under the ADA, an employer’s ability to make medical inquiry falls into one of three stages: preoffer; postoffer; and employment.
The Preoffer Stage. The preoffer stage encompasses any hiring activity that occurs prior to making a conditional offer of employment, including the written job application, the employment interview, background investigation, and the decision to hire. The prohibition extends beyond questions directed to the applicant and applies with equal force to any third party.
During the preoffer stage, employers cannot require an applicant to take a medical examination and cannot make any disability-related or medical inquiry. A "medical examination" prohibited during the preoffer stage is any procedure or test that seeks information about an individual’s health or physical or mental impairments.
Generally, employers may require a psychological test if the test measures personality traits such as honesty, tastes, and habits. However, psychological tests are prohibited medical examinations if they provide evidence that would lead to identifying a mental disorder or impairment.
A test designed to reveal behavior problems or emotional instability or seeking information about personal characteristics, such as organization and time-management skills, addresses appropriate subjects during the preoffer stage because these traits are not necessarily indicative of mental impairment and it is not an impermissible preemployment medical examination.
A vision test is not medical if it evaluates the ability to read labels or distinguish objects. A vision test administered by an ophthalmologist or optometrist is medical. Asking an applicant to read an eye chart is a medical examination prohibited during the preoffer stage. Directly asking about specific sight limitations, even without an examination, is also prohibited.
Employers may require applicants to test for illegal drugs during the preoffer stage because, under the ADA, a person who currently uses illegal drugs is not a qualified individual with a disability.
During the preoffer stage, employers cannot ask what medical conditions or disabilities the applicant has had, or make any inquiry regarding the nature, existence or severity of an applicant’s disability. Employers may not ask any question that "is likely to elicit information about a disability" or that "is closely related to a disability." Conversely, questions are permissible "if there are many possible answers to a question and only some of those answers include disability-related information."
If the applicant has a known disability, employers can ask a job applicant to describe or demonstrate how he would perform a required job task even though the question is not otherwise asked of all applicants. However, if the known disability would not interfere with the performance of a job-related function, then the employer cannot ask the applicant how he would perform the task unless the employer requires all applicants to respond to this question. Where an applicant has an obvious disability or discloses a disability, the employer should not make further inquiry into the nature or severity of the applicant’s condition. Employers cannot ask any questions about how the applicant became disabled, how severe the disability is, or how long the disability may last.
Generally, during the preoffer stage employers may not ask whether the employee will need an accommodation to perform the job. However, where the applicant has a known disability, or the applicant voluntarily tells the interviewer that he or she has a disability or that the applicant needs an accommodation, then the employer may ask the applicant if he or she needs reasonable accommodation and what type of reasonable accommodation would enable the applicant to perform the job. If the applicant responds that he or she does not need a reasonable accommodation, then the employer should not ask any further questions about accommodation.
If an improper medical inquiry is improvidently made during the preoffer stage, the employer is unquestionably at risk that an ADA claim will be asserted. If circumstances permit, the employer should isolate the improperly obtained disability-related information from the decision maker so that the medical information is completely disregarded in the hiring decision. To ameliorate the effect of the improper inquiry, the employer could give consideration to possible reasonable accommodations that would permit the applicant to perform the job. If the employer still strongly believes that the applicant is not the best qualified person for the job, the employer should carefully document the nondisability-related reasons for this employment decision.
The Postoffer Stage. The postoffer stage occurs when the employer has made an offer of employment that is conditional on the results of postoffer disability-related inquiries or medical examinations. The offer must be a "real job offer" made after the employer has evaluated all relevant nonmedical information that it could have reasonably obtained and evaluated prior to making the offer. Passing a required medical examination must be the only condition to the job offer. If there are other conditions to the job offer, the offer is not bona fide and medical examinations are not permitted.
Once the applicant has been given a conditional offer of employment, employers can make unlimited medical inquiry, as long as all applicants for that job category are given the same medical examination or subjected to the same medical inquiry. During the postoffer stage, employers may require a comprehensive, unlimited in scope, medical examination and may ask about an individual’s workers’ compensation history, prior sick leave usage, illnesses, diseases, impairments and general physical and mental health. All medical information obtained during the postoffer stage must be kept in a confidential medical record that is maintained separately from the employee’s personnel file. Employers should carefully consider the scope of required medical inquiries during the postoffer stage and limit such inquiries to information actually needed to make a final employment decision.
The Employment Stage. As a general rule, an employer cannot make any medical inquiry of an employee during the employment stage. However, that general rule is subject to certain exceptions. The standards for determining whether an inquiry is a medical inquiry in the preoffer stage apply to the postoffer stage. The prohibition against making medical inquiries applies with equal force to medical tests, speaking to the employee’s physician about his or her medical condition, inquiries directed to the employee about the nature or extent of an illness, and indirect or surreptitious inquiries such as looking through materials in the employee’s desk. Employers cannot make medical inquiry or require medical examinations without a specific determination that the inquiry is "job-related and consistent with business necessity" or otherwise expressly permitted by the regulations.
Recommended Steps to Avoid Making Improper Medical Inquiries. Basic training should be given to all persons in management and supervisory roles to provide a basic understanding of their obligations under the ADA.
Written job applications should be reviewed for compliance with the restrictions against preoffer medical inquiries. Employers should also consider standardized or scripted interview questions so that preoffer and postoffer inquiries are appropriately limited and to provide clear documentation of compliance with the ADA’s restrictions. Determinations regarding matters such as whether an employee is disabled, and thus entitled to an accommodation, or whether an employee poses a direct threat, should be made by persons with a clear understanding of the ADA’s requirements. An employer should make sure that designated personnel have sufficient knowledge and understanding of the ADA to address these issues.
Teresa L. Clark is a shareholder of the law firm Stinson, Mag & Fizzell, P.C., of Kansas City, Missouri.
This article is an abridged and edited version of one that originally appeared on page 121 in The Labor Lawyer, Summer 1997 issue (13:1).