WHAT CAN AN EMPLOYERS ASK JOB APPLICANTS ABOUT MEDICAL CONDITIONS?

Often after a serious work- related injury, an injured worker needs to look for a new career because he/she is no longer able to do the type of work they had done in the past. Under Maryland Workers Compensation law, the employee is likely to be entitled to vocational rehabilitation which ultimately will involve looking for a new job. Employees looking for new work can encounter potential employers that are reluctant to hire employees with prior medical problems or work- related injuries even if these medical issues are not likely to affect the employee’s ability to perform the new job.

The Americans with Disabilities Act (ADA) protects qualified individuals with disabilities from employment discrimination. If you have a disability, you must meet the following two criteria to be protected from employment discrimination by the ADA:

  1. You must meet the employer’s requirements for the position related to skills, education, experience, and other areas.
  2. You must be able to perform the essential functions of the position with or without reasonable accommodation.

The ADA applies to private employers with 15 or more employees and all state and local government agencies regardless of the number of employees. (Sections 501 and 505 of the Rehabilitation Act of 1973 prohibit discrimination against qualified individuals with disabilities who work in the federal government).

The theory behind the Americans With Disabilities Act (ADA) is if the employer is required to defer medical questions until after the job was offered, this would give employees with disabilities a greater likelihood of being hired. Once the employer conditionally offers the employee a job based upon the employee’s other qualifications, then the employer would be given an opportunity to explore some of the health issues before actually hiring the employee.

Despite the Americans With Disabilities Act employees injured on the job are often asked questions that are against the law. When working with a vocational counselor, the employee should practice how to answer the employer when the potential employer asks an illegal question. When an injured worker is looking for work on their own without a vocational counselor it is still important to know what is legal to ask and was is not legal and how to redirect the conversation without sabotaging the interview.

How to Respond When You Are Asked an Illegal Question?

If you are asked an illegal interview question or the questions begin to follow an illegal trend, you always have the option to end the interview or refuse to answer the question. It may be uncomfortable to do, but you need to be comfortable working at the company. If the questions you are being asked during the interview are indicative of the company’s policies, you may be better off finding out now. Sometimes an interviewer will ask inappropriate questions accidentally, and in that case, you may choose to answer them politely, avoiding the substance of the question but addressing the intent.

The Rochester Institute of Technology Office of Career Services and Cooperative Education has published on their website suggestions on how to deal with illegal questions asked at job interviews. https://www.rit.edu/emcs/oce/alumni/job-seekers-disabilities Below are some of their suggestions.

Federal law requires an employer to provide reasonable accommodations to an employee or job applicant with a disability, unless doing so would cause significant difficulty or expense for the employer. If you require accommodations from an employer during any phase of the employment process (from applying, to interviewing, to working in the job itself), it’s your responsibility to inform the employer that accommodations are needed (see Disclosing a Disability section for further information).

Prior to making a request for accommodations, it’s a good idea for you to think about the tasks for which you will need accommodations and learn about the accommodations you need – sharing this knowledge with your employer will demonstrate you have a solid understanding of your own needs and have already thought about possible solutions the company can implement to meet your needs. When requesting accommodations, you should be familiar with:

  1. The specific accommodations required. (However, the employer doesn’t have to provide the exact accommodation requested. If more than one accommodation is effective, the employer can select which one to provide).
  2. The cost associated with each accommodation
  3. Where the requested accommodations can be obtained/purchased

Disclosing a Disability

Disclosure means sharing information about your disability for the purpose of receiving accommodations. If you have a disability, it’s your personal choice whether or not you share information regarding your disability with an employer. Disclosure is not required, and if you can navigate the hiring process and perform the essential functions of the job without accommodations, it’s typically not necessary. However, in order to receive accommodations or receive other protection under the Americans with Disabilities Act (ADA), you do need to disclose.

Disclosure Preparation

Prior to disclosing your disability, you’ll want to prepare yourself for the discussion by taking the following steps:

  1. Consider the pros and cons of disclosure, and the timing.
  2. Review the phases of the hiring process that may present difficulties for you and/or the job duties you think will be difficult for you to perform due to your disability.
  3. Come up with ideas for possible accommodations. These may be accommodations you have used in the past or accommodations you have researched
  4. Decide who you are going to disclose to (human resources representative, hiring manager, etc.
  5. Plan out how much you want to disclose and exactly what you want to say.

Disclosure Pros, Cons, and Timing

If you choose to disclose your disability, only you can decide when the right time is to share this information with an employer; however, it’s best to disclose prior to problems occurring on the job. Overall, the timing of your disclosure really depends on whether you will need an accommodation during any phase of the employment process.

Below are some pros and cons related to disclosure timing for you to consider when making this decision.

Time of DisclosureProsConsNotes
On resume, cover letter, and/or employment applicationPeace of mind for you – you’ve been up front with the employer.Draws attention to your disability rather than your skills. May disqualify you from the job before you have an opportunity to present your skills/abilities.Generally, disclosure on your resume, cover letter, or employment application isn’t recommended. However, some companies have employment programs specifically for applicants with disabilities; you will likely need to disclose your disability during the application process to be considered for these programs.
When employer contacts you for an interviewPeace of mind for you – you’ve been up front with the employer. For visible disabilities, reduces potential “shock factor” when you arrive for the interview.May distract the interviewer from your skills and ability to do the job, so you may not be seriously considered for the position.Disclosure at this stage may be necessary if accommodations are needed during the interview process. For example, if you use a wheelchair, you will want to make sure the interview site is accessible. Also, if you need to utilize a sign language interpreter, you’ll need to plan for this ahead of time with the employer. *
During the interviewPeace of mind for you – you’ve been up front with the employer. May enable you to present your disability in a positive and personal manner.May distract the interviewer from your skills and ability to do the job, so you may not be seriously considered for the position. Could make the interview more nerve-wracking for you.
After the interview, before the offerPeace of mind for you – you’ve been up front with the employer. You and the employer were able to focus on your skills and abilities during the interview.Employer may feel you should have been up front about your disability earlier in the hiring process – you can address this concern by indicating you needed to learn more about the essential functions of the job prior to disclosing. You may not be seriously considered for the position.
After the offer, before you acceptIf offer is rescinded, you may have legal recourse.Employer may feel you should have been up front about your disability earlier in the hiring process – you can address this concern by indicating you needed to learn more about the essential functions of the job prior to disclosing.This is often the best time to disclose.
After your start the jobGives you an opportunity to prove you’re capable of doing the job. If disclosure impacts your employment status, you may have legal recourse.Disclosure often becomes more difficult the longer you wait. Your job performance may suffer without appropriate accommodations. Employer may accuse you of falsifying your qualifications. You may not have legal recourse against unfavorable changes in your employment status.Changes in your job responsibilities after you start a position may result in you needing to request accommodations.
After a problem on the jobYou’ve had a chance to prove your capabilities related to the job.Relationship with employer and co-workers could be damaged. Employer may accuse you of falsifying your qualifications. You may not have legal recourse against unfavorable changes in your employment status.It is highly recommended that you disclose prior to problems occurring on the job.
NeverYour disability doesn’t become a factor in hiring decisions. Employer doesn’t need to know about your disability as long as it doesn’t impact your ability to do the job.If disability is discovered, employer may accuse you of falsifying your qualifications. You may not have legal recourse against unfavorable changes in your employment status.

 

Who to Tell

In the workplace, you should only disclose your disability to those who need to be involved in the accommodation process. This may include:

Human Resources

Your supervisor

Employee Assistance Program counselor – If you’re already working, have started experiencing problems, and need assistance determining how and to whom to disclose

Disclosure Script

To help you plan out exactly what you want to say and feel more comfortable with the disclosure process, prepare and rehearse your disclosure script in advance.

Your disclosure script should include:

  1. A brief description of your disability – Be concise and avoid using clinical or technical terms that can be confusing and intimidating. You do not need to thoroughly discuss your diagnosis.
  2. An emphasis on your job-related skills and abilities – You want to convey the message that you’re a qualified candidate with great skills who also happens to have a disability, rather than focusing just on your disability!
  3. A description of the functional limitations related to your disability that may interfere with your job performance.
  4. Suggestions for accommodations. The accommodations I need include…

Here’s a sample disclosure script for additional ideas

“I have (provide the preferred term for your disability). I have (list your key skills/abilities) and can perform the essential functions of this job, but sometimes (indicate your functional limitations) might interfere with my ability to (describe the duties you may have difficulty performing). It’s helpful if I have (describe the specific accommodations you need). “

During the Interview

The ADA restricts the types of questions an employer can ask during an interview; overall, employers are prohibited from asking questions that will likely expose an applicant’s disability prior to making an employment offer.

Examples of Appropriate Interview QuestionsExamples of Improper Interview Questions
Can you perform the essential duties of the job? (Interviewer should provide a description of the job duties before asking this question)Are you disabled? / Do you have a medical condition? / Have you ever been on disability leave?
Can you describe or demonstrate how you will perform the essential duties of the job?How severe is your disability? / What is your prognosis?
After you have disclosed you have a disability, it is appropriate for the interviewer to ask:

 

• Do you need a reasonable accommodation?

•What type of reasonable accommodation will be needed?

Do you need accommodations to perform this job? (This question is only appropriate after a job offer has been made or after you have voluntarily disclosed that you have a disability)

Chart adapted from Legal Q&A: Handling Improper Interview Questions by Nancy Conrad and Tanya Salgado, December 2007 NACE Journal

If you encounter an improper interview question such as those listed above, try not to take it personally – the interviewer most likely does not realize that the question he or she is asking is inappropriate. So, how should you respond? When responding to an inappropriate interview question, you typically want to avoid answering the question directly, as you may provide information that could negatively impact your chances of getting hired. Likewise, you usually don’t want to outright refuse to answer the question, as this could result in making both you and the interviewer feel uncomfortable for the remainder of the interview.

The best course of action in this situation is to do the following:

  1. Consider the intent of the question, and instead of responding to the improper question directly, respond in a way that addresses the question’s true objective.
  2. Consider the intent of the question, and instead of responding to the improper question directly, respond in a way that addresses the question’s true objective.
  3. For example, if the interviewer asks, “Are you disabled?” you can interpret that the intent of this question is really “Can you perform the essential duties of this job?”. So, you may want to respond by saying “I’m assuming you’re asking this question because you want to know if I’m able to perform the essential duties of this job, and I assure you I’m capable of performing the essential functions related to this position.”
  4. If you aren’t sure what the intent of the question is, ask the interviewer to further explain what it is he/she is asking.
  5. For example, if the interviewer asks, “Have you ever been on disability leave?” you can say, “I haven’t been asked this question before. Can you tell me more about what it is that you’d like to know?”

It’s important to note too that an employer can’t ask you to take a medical exam prior to offering you a job. However, after you have been offered a job, the employer can make your offer contingent on you completing a medical exam, but only if all applicants offered the same type of job have to take the exam. The employer can’t refuse to hire you due to disability-related information discovered during the exam if you can perform the essential functions of the job with or without an accommodation.

The Equal Employment Opportunity Commission has issued regulations that address what medical type questions can be asked by employers during the interview process and what can be explored by the employer after a conditional offer of employment is made.

EEOC NOTICE Number 915.002 Date 10/10/95

Under the law, 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. This helps ensure that an applicant’s possible hidden disability (including a prior history of a disability) is not considered before the employer evaluates an applicant’s non-medical qualifications.  An employer may not ask disability-related questions or require a medical examination pre-offer even if it intends to look at the answers or results only at the post-offer stage.

Although employers may not ask disability-related questions or require medical examinations at the pre-offer stage, they may do a wide variety of things to evaluate whether an applicant is qualified for the job, including the following:

* Employers may ask about an applicant’s ability to perform specific job functions.  For example, an employer may state the physical requirements of a job (such as the ability to lift a certain amount of weight, or the ability to climb ladders), and ask if an applicant can satisfy these requirements.

* Employers may ask about an applicant’s non-medical

qualifications and skills, such as the applicant’s education, work

history, and required certifications and licenses.

* Employers may ask applicants to describe or demonstrate how they

would perform job tasks.

Once a conditional job offer is made, the employer may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category.  If the employer rejects the applicant after a disability-related question or medical examination, investigators will closely scrutinize whether the rejection was based on the results of that question or examination.

If the question or examination screens out an individual because of a disability, the employer must demonstrate that the reason for the rejection is “job-related and consistent with business necessity.” In addition, if the individual is screened out for safety reasons, the employer must demonstrate that the individual poses a “direct threat.”  This means that the individual poses a significant risk of substantial harm to him/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.

Medical information must be kept confidential. The ADA contains narrow exceptions for disclosing specific, limited information to supervisors and managers, first aid and safety personnel, and government officials investigating compliance with the ADA.  Employers may also disclose medical information to state workers’

compensation offices, state second injury funds, or workers’ compensation insurance carriers in accordance with state workers’ compensation laws and may use the medical information for insurance purposes.

The Pre-Offer Stage

  1. What is a Disability-Related Question?
  2. Definition: “Disability-Related Question” means a question that is likely to elicit information about a disability.
  3. At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability.
  4. This includes directly asking whether an applicant has a particular disability.
  5. It also means that an employer cannot ask questions that are closely related to disability.
  6. On the other hand, if there are many possible answers to a question and only some of those answers would contain disability-related information, that question is not “disability-related.”
  7. Below are some commonly asked questions about this area of the law.
  8. May an employer ask whether an applicant can perform the job? Yes. An employer may ask whether applicants can perform any or all job functions, including whether applicants can perform job functions “with or without reasonable accommodation.”
  9. May an employer ask applicants to describe or demonstrate how they would perform the job (including any needed reasonable accommodations)? Yes. An employer may ask applicants to describe how they would perform any or all job functions, as long as all applicants in the job category are asked to do this. Employers should remember that, if an applicant says that s/he will need a reasonable accommodation to do a job demonstration, the employer must either:
  10. provide a reasonable accommodation that does not create an undue

hardship; or

  1. allow the applicant to simply describe how s/he would perform

the job functions.

  1. May an employer ask a particular applicant to describe or demonstrate how s/he would perform the job, if other applicants aren’t asked to do this? When an employer could reasonably believe 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 s/he would perform the function. An applicant’s disability would be a “known disability” either because it is obvious (for example, the applicant uses a wheelchair), or because the applicant has voluntarily disclosed that s/he has a hidden disability.
  2. May an employer ask an applicant for documentation of his/her disability when the applicant requests reasonable accommodation for the hiring process? Yes. If the need for accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his/her disability if the applicant requests reasonable accommodation for the hiring process (such as a request for the employer to reformat an examination, or a request for an accommodation in connection with a job demonstration).
  3. May an employer ask applicants whether they will need reasonable accommodation to perform the functions of the job? In general, an employer may not ask questions on an application or in an interview about whether an applicant will need reasonable accommodation for a job. This is because these questions are likely to elicit whether the applicant has a disability. There are exceptions to this rule.
  4. the employer reasonably believes the applicant will need

reasonable accommodation because of an obvious disability;

  1. the employer reasonably believes the applicant will need reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or
  • an applicant has voluntarily disclosed to the employer that s/he

needs reasonable accommodation to perform the job.

Example: An applicant with a severe visual impairment applies for

a job involving computer work.  The employer may ask whether he

will need reasonable accommodation to perform the functions of the

job.  If the applicant answers “no,” the employer may not ask

additional questions about reasonable accommodation (although, of

course, the employer could ask the applicant to describe or

demonstrate performance).

  1. May an employer ask whether an applicant can meet the employer’s

attendance requirements? Yes.  An employer may state its attendance requirements and ask whether an applicant can meet them.  An employer also may ask about an applicant’s prior attendance record (for example, how many days the applicant was absent from his/her last job).  However, at the pre-offer stage, an employer may not ask how many

days an applicant was sick, because these questions relate directly to the severity of an individual’s impairments.

  1. May an employer ask applicants about their arrest or conviction?

records? Yes.  Questions about an applicant’s arrest or conviction records

are not likely to elicit information about disability

  1. May an employer ask questions about an applicant’s impairments? Yes, if the particular question is not likely to elicit information about whether the applicant has a disability. It is important to remember that not all impairments will be disabilities; an impairment is a disability only if it substantially limits a major life activity.  So, an employer may ask an applicant with a broken leg how she broke her leg.  Since a broken leg normally is a temporary condition which does not rise to the level of a disability, this question is not likely to disclose whether the applicant has a disability.
  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. So, these questions are prohibited at the pre-offer stage unless they are specifically about the ability to perform job functions.
  3. May an employer ask applicants about their workers’ compensation?

history? No. An employer may not ask applicants about job-related injuries

or workers’ compensation history.

  1. 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

  1. May an employer ask applicants about their lawful drug use? No, if the question is likely to elicit information about disability.
  2. May an employer ask applicants about their lawful drug use if the employer is administering a test for illegal use of drugs? Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.
  3. May an employer ask applicants about their prior illegal drug?

use? Yes, but cannot ask them if they are addicted to drug. These questions are therefore

impermissible at the pre-offer stage.

  1. 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.
  2. 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.

  1. At the pre-offer stage, an can an employer require a medical examination?

At the pre-offer stage, an employer cannot require examinations that seek information about physical or mental impairments or health.

  1. May an employer require applicants to take physical agility or physical fitness tests? Yes. A physical agility test or physical fitness test, in which an applicant demonstrates the ability to perform actual or simulated job tasks, is not a medical examination under the ADA.
  2. May an employer give psychological examinations to applicants? Yes, unless the particular examination is medical. This determination would be based on some of the factors listed above, such as the purpose of the test and the intent of the employer in giving the test.  Psychological examinations are medical if they provide evidence that would lead to identifying a mental disorder or impairment. If a test is designed and used to measure only things such as honesty, tastes, and habits, it is not medical. An employer gives the IFIB Personality Test (hypothetical), an examination designed and used to reflect only whether an applicant is likely to lie.  This test, as used by the employer, is not a medical examination.
  3. May an employer give polygraph examinations to applicants? Although, most employers are prohibited by federal and state laws from giving polygraph examinations, some employers are not prohibited from giving these examinations. Under the ADA, polygraph examinations are not medical examinations unless they contain disability questions.
  4. 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.

  1. May an employer give applicants tests to determine illegal use?

of controlled substances? Yes.  The ADA specifically states that, for purposes of the ADA tests to determine the current illegal use of controlled substances are not considered medical examinations.

  1. May an employer give alcohol tests to applicants? No. Tests to determine whether and/or how much alcohol an individual has consumed are medical, and there is no statutory exemption.

The Post-Offer Stage

  1. After giving a job offer to an applicant, an employer may ask disability-related questions and perform medical examinations. The job offer may be conditioned on the results of post-offer disability-related questions or medical examinations.
  2. At the “post-offer” stage, an employer may ask about an individual’s workers’ compensation history, prior sick leave usage, illnesses/diseases/impairments, and general physical and mental health. Disability-related questions and medical examinations at the post-offer stage do not have to be related to the job.
  3. If an employer asks post-offer disability-related questions, or requires post-offer medical examinations, it must make sure that it follows certain procedures:
  4. all entering employees in the same job category must be subjected to the examination/inquiry, regardless of disability; and
  5. medical information obtained must be kept confidential.
  6. At the post-offer stage, may an employer ask all individuals whether they need reasonable accommodation to perform the job? Yes.
  7. An employer must keep any medical information on applicants or employees confidential, with the following limited exceptions:
  8. supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;
  9. first aid and safety personnel may be told if the disability might require emergency treatment;
  10. government officials investigating compliance with the ADA must

be given relevant information on request;

  1. employers may give information to state workers’ compensation

offices, state second injury funds or workers’ compensation insurance carriers in accordance with state workers’ compensation laws; and

  1. employers may use the information for insurance purposes.25
  2. Medical information may be given to — and used by — appropriate decision-makers involved in the hiring process so they can make employment decisions consistent with the ADA. In addition, the employer may use the information to determine reasonable accommodations for the individual.
  3. Medical information must be collected and maintained on separate forms and in separate medical files and not personnel files

Other interview questions that are illegal to ask under other federal and state laws not based upon the ADA.
Interview Questions That Are Illegal

Employers should not ask about any of the following unless it specifically relates to the job requirements and employer can demonstrate that they are bona fide occupational qualifications (BFOQs) that are reasonably necessary to the normal operation of business because to not hire a candidate because of any one of them is discriminatory: Faced with questions such as these, you can refuse to answer, stating simply, “This question does not affect my ability to perform the job.”

  1. Race or Color
  2. Sex
  3. Religion
  4. National origin
  5. Birthplace
  6. Age unless prerequisite of job you be at least a certain age
  7. Disability
  8. Marital/family status
  9. When did you graduate?
  10. What is your date of birth?
  11. Questions such as “Is English your native language?”,
  12. “Are you a U.S. Citizen?”,
  13. “Were your parents born in the U.S.?”, Are you legally eligible to work in the United States?”
  14. A prospective employer cannot ask about your financial status or credit rating during an interview. There are limited exceptions to this if you are applying for certain financial and banking positions.
  15. During an interview, you cannot be asked about arrests without convictions, or involvement in any political demonstrations.
  16. An interviewer can’t ask your marital status if you have children, what your childcare situation is, or if you intend to have children (or more children).
  17. You cannot be asked about your spouse’s occupation or salary.
  18. You can’t be asked your gender during an interview for a position, unless it directly relates to your qualifications for a job, such as an attendant in a gender-restricted restroom or locker room.
  19. You may not be asked about your type of discharge or about your military records unless it relevant to the job you are applying for. For example, if the position required a security clearance.
  20. An interviewer cannot ask your religious affiliation or holidays that you observe. It is illegal to be asked your place of worship or your beliefs. Before You File a Claim

Filing a Claim

If you believe you have been discriminated against by an employer, labor union or employment agency when applying for a job or while on the job because of your race, color, sex, religion, national origin, age, or disability, or believe that you have been discriminated against because of opposing a prohibited practice or participating in an equal employment opportunity matter, you may file a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). To file a charge, contact an attorney who handles labor issues, or contact your local EEOC office:

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