A few years ago, one of my colleagues emailed me and asked if I would review a particular question on a client’s job application. Specifically, the client wanted to know whether a certain health-related inquiry was something the client could do before extending a conditional offer of employment.
Well, not only was this particular question unlawful, so were the other four I found on the job application. They all violated the Americans with Disabilities Act. Every. Damn. One.
But, was this an anomaly? If we drained the ADA-noncompliance swamp, would we only find this employer?
My bottles of Drakkar Noir and left arm adorned in shiny Rowleckses says, “No.”
Well, that’ll teach me to spend my employment-law riches on a guy named “Snake” who also deals Three-card Monty. Wait, that’s The Simpsons.
Either way, this client is not alone with the ADA hiring issues.
But, before I talk about disability-related inquiries and medical examinations, I wanted to thank everyone who emailed me last Thursday about getting hooked up with that free workplace-investigation training. I emailed the two winners.
Put differently, if you really want that training and I didn’t email you, then I’ll train you too. But, you’ll have to contribute to my Rowlecks Fund.
A few weeks ago, the U.S. Equal Employment Opportunity Commission issued this press release announcing it had settled ADA claims with an employer that supposedly had made unlawful pre-offer health inquiries of applicants. Here’s more about the EEOC’s underlying lawsuit:
According to EEOC’s lawsuit, Strataforce asked applicants to complete an application package that included a detailed medical questionnaire before the company offered the applicant a position or placement. The medical questionnaires asked for sensitive health information, and included numerous disability-related questions. Employers are generally prohibited from making pre-offer medical inquiries and refusing to hire qualified individuals with disabilities by the Americans with Disabilities Act (ADA).
The parties reached an agreement under which the employer will be required to provide notice to applicants of their rights under the ADA and submit annual compliance reports to the EEOC for four years.
You and I’ll just use a little patience.
So, what can you ask during a job interview? What about after you extend a job offer?
Here is the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA). There’s a lot to it. But, essentially, here’s what covered employers need to know about pre-offer medical inquiries and examinations:
This statutory language makes clear that the ADA’s restrictions on inquiries and examinations apply to all employees, not just those with disabilities. Unlike other provisions of the ADA which are limited to qualified individuals with disabilities, the use of the term “employee” in this provision reflects Congress’s intent to cover a broader class of individuals and to prevent employers from asking questions and conducting medical examinations that serve no legitimate purpose. Requiring an individual to show that s/he is a person with a disability in order to challenge a disability-related inquiry or medical examination would defeat this purpose. Any employee, therefore, has a right to challenge a disability-related inquiry or medical examination that is not job-related and consistent with business necessity.
And, after you make a conditional offer of employment, then you pull out your stethoscope:
Only disability-related inquiries and medical examinations are subject to the ADA’s restrictions. Thus, the first issue that must be addressed is whether the employer’s question is a “disability-related inquiry” or whether the test or procedure it is requiring is a “medical examination.” The next issue is whether the person being questioned or asked to submit to a medical examination is an “employee.” If the person is an employee (rather than an applicant or a person who has received a conditional job offer), the final issue is whether the inquiry or examination is “job-related and consistent with business necessity” or is otherwise permitted by the ADA.