Questioning Employees and the ADA
Kegler Brown Labor + Employee Relations Newsletter December 1, 2006
Most employers have become familiar with the Americans with Disabilities Act and the requirement to reasonably accommodate an employee with a disability, however, since the enactment of the Americans With Disabilities Act in 1990, employers have faced the dilemma of what, if any, questions they may ask about their employees' health, including disabilities the employee may have. These types of questions are called "disability-related inquiries." A "disability-related inquiry" is a question that is likely to elicit information about a disability. The broad definition of disability related inquiry has left many employers confused about what types of questions are permissible, and when. Obviously, questions about whether the employee currently has or has ever had a disability are disability related questions. More surprisingly, questions about the kinds of prescription medications the employee is taking or the results of any genetic tests they have had are also considered disability related inquiries.
The Equal Employment Opportunity Commission has issued guidelines to help with the uncertainty surrounding disability-related questions. The guidelines break the employment relationship into three stages (pre-offer, post-offer and after employment begins). At the first stage (pre-offer), an employer may not ask any disability-related questions or require any medical examinations, even if they are related to the job. At the second stage (post offer, after an applicant is given a conditional job offer, but before he or she starts work), an employer may ask disability-related questions 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.
Interpreting the guidance as it relates to the first two prongs, employers must wait to conduct medical examinations or ask disability related questions until after the employee has been conditionally offered the position. Employers who have jobs which require certain skills (ability to lift a certain amount, ability to see a certain distance, ability to flex or bend a limb, etc…) should conduct medical examinations and ask questions related to these requirements of all applicants that have been offered a position. These inquiries or examinations should occur prior to the employee beginning work.
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. A question is job related and consistent with business necessity if a medical condition would render the employee unable to perform the essential functions of his or her job. When the employee will pose a "direct threat" because of a medical condition disability related questions are considered job related and consistent with business necessity. Generally, employees who pose a direct threat are those in positions affecting public safety.
Questions that are not considered disability related questions include: asking employees about their general well-being; about their current illegal use of drugs and questions about whether the employee can perform job functions (without any mention of a disability); and are always permitted. Employers are also permitted to ask disability related questions when an employee asks for an accommodation or in relation to an FMLA request, so long as those questions are related to the accommodation or FMLA qualifying condition. In conclusion, most of the information employers need to know about their employees can be obtained, it's just a matter of asking the questions in the right way, at the right time.