SUMMARY

The ADA is unique among federal civil rights laws in that it prohibits certain inquiries and examinations at the pre-offer and post-offer stages of the hiring process before an individual actually starts work for an employer. The ADA prevents an employer from asking about the existence, nature or severity of a disability, and prohibits an employer from conducting medical examinations until after the employer determines that the applicant is qualified for the job and makes a conditional employment offer to the applicant.

However, at the pre-offer stage, employers may ask about an applicant's ability to perform specific job-related functions. For example, an employer may ask an applicant whether the applicant can satisfy the essential functions of the job, with or without reasonable accommodation. An employer may also ask an applicant to describe or demonstrate how the applicant would perform job-related tasks with or without reasonable accommodation. This question may be asked as long as all applicants for the job category are asked the same questions. Employers also may ask a particular applicant to describe or demonstrate performance if the applicant has a known disability which may interfere with or prevent the performance of job-related functions. The ADA does require that the employer provide any reasonable accommodation needed for the applicant to perform the job functions.

Once a conditional job offer is made, the employer may require medical examinations and make disability-related inquiries. If the employer rejects the applicant after a medical examination or disability-related inquiry, the employer must demonstrate that the applicant was excluded for reasons that are job-related and consistent with business necessity. In addition, the employer must show that the essential job functions cannot be performed with reasonable accommodation. If the applicant is excluded for safety concerns, the employer must be able to show the decision was based on objective, factual evidence that the individual poses a significant risk of substantial harm to himself/herself or others, and that the risk cannot be reduced below the direct threat level through reasonable accommodation.

Below is a more detailed discussion of pre-employment inquiries under the ADA.

PRE-OFFER INQUIRIES

Existence, nature or severity of a disability. An inquiry concerning the existence, nature or severity of a disability is likely to elicit information about a disability. This means that an employer could reasonably expect that an applicant's response to the inquiry would likely indicate whether the individual has a disability. Therefore, an employer cannot ask whether an individual has a particular disability, nor may an employer ask questions that are so closely related to disability that the individual's response is likely to provide information about a disability. If an applicant volunteers information about the applicant's disability, this is not in violation of the ADA. However, where an individual voluntarily discloses a disability, an employer may not make follow-up inquiries concerning the disability at the pre-offer stage.

Performance of job functions. An employer may inquire about an applicant's ability to perform job-related functions, with or without reasonable accommodation. An employer may inquire about an applicant's ability to perform both essential and marginal functions. However, an employer may not reject the applicant because the applicant is unable to perform a marginal function due to the disability.

Impairments. Inquiries about impairments are treated differently than inquiries about disabilities because an impairment may or may not be a disability. An impairment is a disability only if it substantially limits one or more major life activities. Therefore, inquiries about impairments are unlawful at the pre-offer stage only if they are likely to elicit information about the applicant's disability. It is best when asking questions about an applicant's ability to perform specific job functions to focus on those essential job functions, and avoid questions about impairments, limitations on major life activities and disabilities.

Performance of job-related functions. Requests to describe or demonstrate how an applicant would perform job-related functions are not considered disability related because they are not likely to elicit information about a disability. This type of request elicits information about an applicant's ability to perform these functions. Accordingly, an employer may ask applicants to describe or demonstrate how they would perform essential and marginal functions, with or without reasonable accommodation.

If, in response to an employer's request to demonstrate performance, an applicant indicates that she/he will need a reasonable accommodation, the employer must either: (1) provide a reasonable accommodation that does not create an undue hardship so that the applicant can demonstrate job performance; or (2) allow the applicant to simply describe how the applicant would perform a job function. These questions should be asked of all applicants in the same job category.

Need for accommodation during the hiring process. An employer may inform applicants on an application form or job advertisement that the hiring process includes a specific selection procedure. Applicants may be asked to inform the employer of any reasonable accommodation needed to take such a pre-offer examination, interview or job demonstration. Such requests are not prohibited pre-offer inquiries.

However, it should be noted that at the pre-offer stage, an employer may not generally inquire whether the applicant needs reasonable accommodation for the job. Such inquiries are likely to elicit information about the existence of a disability because, generally, only an individual with a disability would require an accommodation. Therefore, these inquiries are prohibited at the pre-offer stage.

Known disabilities. The EEOC's Enforcement Guidance states that at the pre-offer stage, an employer may not ask an applicant with a known disability about the nature or severity of the disability, or about other disabilities. The final version of the EEOC's Guidance issued on October 10, 1995, eased some of the restrictions on employers, and states that an employer may ask whether an applicant needs reasonable accommodation and what type of reasonable accommodation would be needed to perform the functions of the job when (1) the employer reasonably believes the applicant will need reasonable accommodation because of an obvious disability; (2) 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 (3) an applicant has voluntarily disclosed to the employer that s/he needs reasonable accommodation to perform the job. An employer may only ask about reasonable accommodation that is needed now or in the near future.

Attendance. An employer may state its attendance requirements and ask whether an applicant can meet them. In addition, an employer may ask about an applicant's prior attendance record. These inquiries are not likely to elicit information about a disability because there may be many reasons unrelated to disability why an applicant was absent for a number of days from a job. However, the employer may not follow-up this line of pre-offer inquiry with unlawful pre-offer inquiries such as whether the applicant was sick.

Workers' compensation history. The ADA prohibits an employer from asking an applicant at the pre-offer stage about job-related injuries or workers' compensation history because these inquiries are likely to elicit information about an applicant's disability. Also, an employer cannot ask these questions of third parties, such as former employers, reporting services, or state workers' compensation boards at the pre-offer stage.

Drug and alcohol use. An individual who currently engages in the illegal use of drugs is not protected under the ADA when the employer acts on the basis of the drug use. Therefore, inquiries to determine the current illegal use of drugs are not likely to elicit information about a covered disability. However, inquiries about current or prior lawful use of controlled substances or other medication taken under the supervision of a licensed health care professional are impermissible at the pre-offer stage. These inquiries are likely to elicit information about the existence, nature or severity of a disability because the extent and type of medication is likely to elicit information about an individual's disability. However, if an applicant tests positive for illegal use of drugs, the employer may validate the test results by inquiring as to lawful drug use or other bio-medical explanations for the positive result.

Drug addiction and alcoholism. Although an employer may ask whether an applicant has illegally used drugs in the past, an employer may not ask, at the pre-offer stage, about the extent of such prior use because this is likely to elicit information about a disability.

An employer may ask an applicant whether she/he drinks alcohol. However, at the pre-offer stage, an employer may not ask an applicant about whether she/he is an alcoholic, because alcoholism is a disability. In addition, an employer may not ask an applicant about how much alcohol she/he drinks because this inquiry is likely to elicit information about the existence, nature, or severity of a disability.

Affirmative action obligations. The ADA does not prohibit affirmative action for individuals with disabilities. In implementing affirmative action programs, employers sometimes invite applicants to indicate voluntarily whether and to what extent they have a disability.

The ADA allows employers to ask applicants to voluntarily self-identify as having disabilities if those employers actually provide affirmative action for such individuals. At the pre-offer stage, an employer may therefore invite applicants to voluntarily supply disability-related information needed by the employer to provide affirmative action if the affirmative action is required by federal, state or local law, or the employer is voluntarily undertaking affirmative action for individuals with disabilities.

If the employer invites applicants to voluntarily self-identify in connection with the above-mentioned situations, an employer must take the following steps prior to inviting an applicant to voluntarily self-identify:

    1. State clearly and conspicuously on any written questionnaire used for this purpose, or state clearly orally (if no written questionnaire is used), that the specific information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and

    2. State clearly and conspicuously that the specific information is being requested on a voluntary basis, that it will be kept confidential in accordance with the ADA, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with the ADA.

In order to assure that the self-identification information is kept confidential, employers should invite such self-identification on a form separate and apart from the application, or on a sheet that will be torn off from the application.

Inquiries of third parties regarding an applicant's medical condition. At the pre-offer stage, an employer may not ask a third party anything that it cannot ask the applicant directly. Therefore, an employer may not make inquiries of third parties as to whether an applicant has a disability.

Medical examinations. An employer may not ask disability-related questions or conduct medical examinations before an applicant has been given a conditional offer of employment. A medical examination is a procedure or test which seeks information about the existence, nature or severity of an individual's physical or mental impairment, or that seeks information regarding an individual's physical or psychological health. The EEOC will consider a number of factors in determining whether a test or procedure is a medical examination, including among others:

    1. Whether the procedure or test is one that is administered by either a healthcare professional or someone trained by a health care professional.

    2. Whether the results of the procedure or test are interpreted by either a health care professional or someone trained by a health care professional.

    3. Whether the procedure or test measures physiological or psychological responses of an individual, as opposed to the individual's performance of a task.

    4. Whether medical equipment or devices are used for administering the procedure or test.

Physical Ability Test. A physical agility test, in which an applicant demonstrates his/her ability to perform an actual or simulated job-related task is not a medical examination. Tests which seek information concerning the existence, nature or severity of an individual's physical or mental impairment are a medical examination. However, tests which measure an applicant's ability to perform a task are not. Therefore, they may be administered at the pre-offer stage.

Psychological Tests. Some employers administer a wide variety of examinations which may be characterized as psychological in nature. If a psychological test is considered medical in nature, it may not be given at the pre-offer stage, but may be given at the post-offer, pre-employment stage. Psychological examinations will be considered medical examinations to the extent that they provide evidence concerning an applicant's mental impairment or general psychological health. On the other hand, to the extent that a test is designed and used to measure only such factors as an applicant's honesty, tastes and habits, it would not normally be considered a medical examination. All psychological tests should be reviewed to determine whether some or all of the questions asked would be considered a medical examination.

Polygraph Tests. Polygraph examinations are not, in and of themselves, medical examinations. However, certain inquiries that are frequently made before the polygraph examination is administered, as well as certain inquiries made during the examination, are prohibited pre-offer inquiries. For example, applicants have commonly been asked whether they have physical impairments that might be adversely affected by the emotional stress of a polygraph examination. This area of inquiry is prohibited at the pre-offer stage because it is likely to elicit information about a disability. Applicants who are required to take polygraph tests are sometimes asked whether they are taking medication or other substances that may skew the results of the examination. These inquiries are prohibited at the pre-offer stage.

Vision Tests. A vision test may or may not be a medical examination depending on the type of test. Evaluating an individual's ability to read labels or distinguish objects as part of a demonstration of actual job performance is not a medical examination. However, requiring an applicant to submit to an ophthalmologist or optometrist's analysis of his/her vision is a prohibited pre-offer medical examination.

Drug Tests. Examinations intended to determine the current illegal use of drugs are not considered medical examinations, and therefore may be administered at the pre-offer stage. However, an employer may not seek information at the pre-offer stage about current or prior lawful drug use. Such information could reveal the existence, nature or severity of an impairment or disability. As discussed previously, if an applicant tests positive for illegal drug use, the employer may validate the test results by asking the applicant about lawful drug use which may have resulted in a positive test result. If an employer conducts a test solely for unlawful drug use, but receives test results indicating lawful drug use, the employer has not violated the ADA.

Alcohol Tests. Tests or procedures intended or designed to determine whether and/or how much alcohol an individual has consumed are medical examinations if they are invasive (e.g., require the drawing of blood, urine, breath). Accordingly, an employer that requires such tests during the hiring process may not administer them at the pre-offer stage.

POST-OFFER PRE-EMPLOYMENT EXAMS AND INQUIRIES

The ADA permits employers to make disability-related inquiries and to require medical examinations after a conditional offer of employment has been extended, but before the individual has started work. Job offers that are conditional on the results of medical examinations and/or inquires must be bona fide job offers. In order for a job offer to be considered bona fide, an employer should have evaluated all relevant non-medical information which, from a practical and legal perspective, could reasonably have been analyzed prior to extending the offer.

General rules. After an applicant has been offered employment, but before employment has begun, an employer may require medical examinations and may inquire regarding the existence, nature or severity of a disability. Employers may condition the employment offer on results of an examination or inquiry, as long as:

    1. All entering employees in the same job category are subjected to the examination or inquiry, regardless of disability; and

    2. The information obtained is kept confidential.

Accordingly, at the post-offer stage, an employer may ask about an individual's worker's compensation history, prior sick leave usage, illnesses/diseases and general physical or mental health. Medical examinations and inquiries that are required of all entering employees in the job category at the post-offer stage do not have to be related to the job in question. As a practical matter, however, it is desirable to avoid examinations and inquiries that are not job-related. If an employer obtains information about an applicant's disability and it is not relevant to the job, this may be an important factor if a discrimination claim is made at a later date.

If an examination or inquiry is used to screen out an individual with a disability as a result of a disability, the exclusionary criteria must be job-related and consistent with business necessity, and an employer must demonstrate that the essential job functions could not be performed with reasonable accommodation. When safety considerations are implicated, the individual can only be screened out because the applicant poses a direct threat. The individual must pose a significant risk of substantial harm to himself/herself or others, and this risk cannot be reduced below the level of a direct threat through reasonable accommodation.

On June 10, 2002, the U. S. Supreme Court issued another ADA decision favorable to employers: Chevron U.S.A., Inc. v. Echazabal. The Court upheld the rule issued by the EEOC authorizing an employer to refuse to employ an individual with a disability in a job which could endanger his or her own health or safety.

The Chevron case makes it clear that the law does not bar employers from making employment decisions that may impact negatively on individuals with disabilities. This case clarifies the importance of the ADA's requirement of a case-by-case determination of who is disabled, what is a reasonable accommodation, and what is a lawful defense to an adverse employment decision. The Supreme Court expressly declined to say how acute the threat to a person must be. Employers seeking to defend decisions based on the threat to self must have obtained a "reasonable medical judgment" founded on competent medical opinions.

Employers must develop relationships with doctors and other health care professionals skilled in assessing the impact of medical conditions on an individual's ability to work. Employers testing applicants' physical abilities as part of a work injury prevention program must be prepared to prove that the job functions at issue are essential, the risk of injury due to a medical impairment is significant, the potential harm that will occur is substantial, and reasonable accommodations cannot reduce to an acceptable level or eliminate the threat.

Confidentiality. Medical information obtained in the course of a post-offer medical examination or inquiry may be provided to and used by appropriate decision makers involved in the hiring process in order to make employment decision consistent with the ADA. Once the selection decision is made, the medical information must be kept confidential. The ADA requires that the information be collected and maintained on separate forms and in separate medical files. Thus, an employer should not place any medical-related material in an employee's non-medical personnel files.

The ADA prohibits an employer from disclosing confidential medical information to anyone, including co-workers, except as expressly provided in the law. The ADA allows disclosure of this information only in the following circumstances:

    1. Supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

    2. First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment;

    3. Government officials investigating compliance with the ADA shall be provided relevant information on request;

    4. Employers may submit information to state workers' compensation offices, state second injuries funds or workers' compensation insurance carriers in accordance with state workers' compensation laws; and

    5. Employers may use the information for insurance purposes.

The fact that an applicant was not hired or that an employee no longer works for the employer does not terminate the employer's obligation to maintain the confidentiality of medical information regarding the individual.

SOURCES

   1. The information in this chapter was adapted from the EEOC's "Enforcement Guidance: Preemployment Disability-Related Inquiries and Medical Examinations under the Americans with Disabilities Act of 1990," issued May 19, 1994, and the final version of the EEOC Guidance issued October 10, 1995. This chapter does not reiterate all information in the guidelines. Note that EEOC guidelines indicate the EEOC's interpretation of the law and how it will be enforced by the EEOC.