October 12, 2021 | Category: ADA Compliance, Compliance, Discrimination, Hiring

Under the Americans with Disabilities Act (ADA) asking disability-related questions or requiring medical examinations, regardless of how the information is used, can be the basis for a claim or lawsuit.

EEOC guidance has defined a disability-related question as one that is likely to elicit information about a disability. Both questions directly about disability, and those closely related to disability are included in this definition. A question is not considered disability-related though, if there are many possible answers to a question and only some of those answers would contain disability-related information. Further, the EEOC defines a medical examination as a procedure or test that seeks information about an individual’s physical or mental impairments or health.

The ADA breaks down hiring into three stages: pre-offer, post-offer (after applicant is given a conditional job offer), and employment (after the employee starts work). There are different rules for each stage in regard to the permissibility of disability-related questions and examination. It is important to note, under the ADA, any medical information collected in any of the three stages must always be kept confidential.

Pre-Offer

 In the first stage, the pre-offer stage, even if the questions or examinations are related to the job, the ADA prohibits all disability-related questions and medical examination. This prohibition applies even if an employer does not intend to look at the answers to questions or results of the examination until after the post-offer stage. The EEOC has stated that the prohibition against these types of questions and examinations is to ensure that an applicant’s potential hidden disability or history of disability is not considered before the employer evaluates the applicant’s non-disability or medical qualifications.

In the pre-offer stage, employers may state the physical requirements of a job, such as the ability to lift a certain amount of weight, or climb a ladder, and ask if the applicant can satisfy these requirements. For example, an employer can ask an applicant if they can perform all job functions with or without reasonable accommodation, or an employer can lay out job functions and ask the application if they can perform those functions. However, the employer may not ask an applicant whether they have a medical condition that would interfere with the applicant’s ability to do the job.

Post-Offer

In the post-offer stage, or the second stage, the law allows all disability-related questions and medical examinations, as long as all entering employees in the job category are asked the questions or given the examinations. To be in the post-offer stage there must be a real job offer. The EEOC has stated that a job offer is real only if the employer “has evaluated all relevant non-medical information which it reasonably could have obtained and analyzed prior to giving the offer.”

Once in the post-offer stage, disability-related questions and medical examinations do not have to be related to the job, they just have to apply to all employees in that job category. As such, employers may ask about an individual’s workers’ compensation history, prior sick leave usage, illness, diseases, impairments, and general physical and mental health. Further, employers are allowed to ask individuals whether they will need a reasonable accommodation for the job. However, an employer still needs to be very careful in this stage because asking a bunch of disability-related questions could lay the foundation for a disability discrimination claim if or when that individual suffers an adverse employment action.  As such, we always recommend that at this stage an employer only ask for information that is actually needed for the employment relationship.

Employment

In the third and final stage, the employment stage, the ADA permits disability-related questions and medical examinations only if they are job-related and consistent with business necessity. Pursuant to EEOC guidance, a question or examination is job-related and consistent with business necessity when an employer has reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

The EEOC has further stated that this standard may sometimes be met when: 1) “an employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition;” or, 2) an employer has been “given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat.”

Regarding fitness for duty examinations, the EEOC has stated that they are permissible as long as they are “periodic medical examinations on employees in positions affecting public safety that are narrowly tailored to address specific job-related concerns”. Also, the EEOC considers questions regarding an employee’s medications to be disability-related, as such, these questions must be job-related and consistent with business necessity. Employers need to be careful about asking about medications and should not ask employees to disclose all medication they are taking. Instead, it is recommended that employers narrow any question about employee medications to only asking about medications that could make the employee a danger to themselves or others in performing their essential functions.

Also, if an employee is requesting a reasonable accommodation for their job and the need for the accommodation is not obvious, the EEOC has stated that an employer many require reasonable documentation of the employee’s entitlement to a reasonable accommodation. What this means is that an employer may require documentation which states that the employee has a covered disability and the employee’s functional limitations. The EEOC has further elaborated on this guidance and stated that an employer may require documentation from an employee that, “describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities,” as well as “substantiates why the requested reasonable accommodation is needed.” Keep in mind though, employers may only ask for his documentation if an employee has requested an accommodation and the need for accommodation is not obvious. Employers must also be careful as even though they may require documentation, employers are “not entitled to medical records that are unnecessary to the request for reasonable accommodation.”

Asking questions to employees and applicants without implicating the ADA can be tricky for employers to navigate. As such, when an employer finds themselves in a situation where they have to ask an employee or applicant questions that may implicate the ADA, there are two important questions they should keep in mind: Are the questions disability related and/or is the examination medical? Where are we in the employment process (i.e., which stage)? If an employer keeps these questions in mind, they should be able to avoid running afoul of ADA regulations.

For over 80 years, Nevada Association of Employers (NAE) has been providing Nevada companies with services and support to help them succeed. Members with questions regarding the ADA and medical inquiries should contact our team of experienced human resources and legal professionals to discuss. Not a member? Learn more about who we are and what we do for Nevada employers or join today!