Labor & Employment Law Articles

Americans with Disabilities Act - Guidelines on Pre-Employment Inquiries

One of the more controversial aspects of the Americans with Disabilities Act is the prohibition on employers from making pre-employment inquiries regarding an applicant's impairment. The Equal Employment Opportunity Commission recently issued guidelines regarding whether various disability-related pre-employment inquiries comply with the ADA and whether certain examinations are medical exams that cannot be required until after a conditional offer of employment is made. The guidelines also provide clarification on the use of medical inquiries and examinations after an offer of employment is made and on maintaining the confidentiality of medical information.

The guidelines provide that the following questions are examples of permissible inquiries which are not disability related:

Can you perform the functions of this job with or without reasonable accommodation?
Please describe or demonstrate how you would perform these functions.
Can you meet the attendance requirements of this job? How many days did you take last year? [This type of inquiry may present problems with the Family Medical Leave Act which requires employers of more than fifty employees to provide 12 weeks of unpaid leave to employees with a serious health condition.]
How much do you weigh? How tall are you? Do you regularly eat three meals a day? [This type of inquiry may conflict with the New York Legal Activities Law and/or the New York State Human Rights Law.]

On the other hand, these guidelines indicate that the following are examples of prohibited disability-related inquiries:

Do you have AIDS? Do you have asthma?
Do you have a disability which would interfere with your ability to perform the job?
Have you ever filed for workers' compensation? Have you ever been injured on the job?
How much alcohol do you drink each week? Have you ever been treated for mental health problems?
What prescription drugs are you currently taking?

It is obvious from the above that there is a very fine line between what is permissible and what is prohibited. Moreover, what is permissible under the ADA may present a conflict with another statute such as the Family and Medical Leave Act. It is essential that any company that engages in anything more than superficial interviewing of applicants be thoroughly familiar with these guidelines. It is advisable that interview questions be in writing so that they will not be misconstrued by applicants.

Pre-employment Medical Examinations

Under the ADA, an employer may not conduct medical examinations before an applicant has been give a conditional offer of employment. The guidelines provide that the following factors are to be used in determining whether any particular test is medical:

Whether the test is administered by a health care professional or trainee;
Whether the results of the test are interpreted by a health care professional or trainee;
Whether the test is designed to reveal an impairment or the state of an individual's physical or psychological health;
Whether the test is given for the purpose of revealing an impairment or the state of an individual's physical or psychological health;
Whether the test is invasive (e.g., requires drawing of blood, urine, breath, etc.);
Whether the test measures physiological/psychological responses (as opposed to performance of a task);
Whether the test is normally done in a medical setting; and
Whether medical equipment/devices are used for the test.

However, the guidelines specifically state that the following are not considered medical tests under the ADA:

Physical agility/physical fitness tests which do not include medical monitoring;
Certain psychological tests, such as tests which simply concern an individual's ability to perform job-related skills or tasks; and
Tests for illegal use of drugs [which may conflict with the New York State Human Rights Law].

Again, there is a very fine line between what may be permissible and what is prohibited. It is advisable to closely examine all testing of employees to determine their conformance to the EEOC guidelines. We will be happy to provide a complimentary copy of these guidelines upon request.