I remember once I had a colleague asked me to review an addendum to a job application for a client to make sure it was all good and legal.
There were four questions on the addendum:
- Do you have a disability?
- Will you need a reasonable accommodation to perform [name of job]?
- Have you ever filed a workers’ compensation claim?
- Have you ever sued a prior employer?
So, yeah, as completely illegal as it was, we changed it, and the statute of limitations has since passed.
What made me think of this? Yesterday, I was on the EEOC’s website where I caught this recent press release about a healthcare employer with similar paperwork. Unfortunately, the statute of limitations had not passed. Instead, the EEOC sued.
Here’s more from the press release:
According to the lawsuit brought by the EEOC …, [the Companies] required employees to complete a Medical Questionnaire that contained unlawful medical inquiries that were not job related nor required by business necessity. The EEOC alleged that the medical questionnaire asked if employees had any of over 20 listed medical conditions, whether the employee had an impairment or disability, whether the employee had previous surgery or received a permanent disability rating.
The EEOC further alleged that a former employee with health issues answered all of the questions truthfully, but her disabilities did not impact her ability to perform the job. However, the company supposedly terminated the employee a week later.
What’s wrong with this picture?
Well, two things, according to the EEOC:
“[The Company]’s requirements for unnecessarily broad disclosure of this information was by itself a violation of the ADA. Terminating [the employee] based upon her answers to the unlawful questionnaire just made matters worse with yet another violation,”….
The company settled for $30K
So, when, if ever can you make disability-related inquiries or require medical examinations? So glad you asked. Here’s what the EEOC has to say about that:
Under the ADA, an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. At the first stage (prior to an offer of employment), the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. At the second stage (after an applicant is given a conditional job offer, but before s/he starts work), an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
If you’d like more information on disability-related inquiries or require medical examinations, check out these resources:
- EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)
- EEOC Questions And Answers: Enforcement Guidance On Disability-Related Inquiries And Medical Examinations Of Employees Under The Americans With Disabilities Act (ADA)
- Accommodation and Compliance: Medical Exams and Inquiries (Job Accommodation Network)