Disability-Related Inquiries

SUMMARY: In the United States, there are rules about when and what an employer may ask a job applicant or employee about disability.

In order to protect the rights of people with disabilities in employment, the American with Disabilities Act (ADA) limits an employer’s ability to ask job applicants and employees about disabilities. The US Equal Employment Opportunity Commission (EEOC) defines a disability-related inquiry as a question or series of questions that is likely to elicit information about a disability. The question can be direct or it can be such that an answer would likely reveal the information. A disability-related inquiry might occur during a job interview, where a prospective employer might ask a job applicant about a disability. It might also occur once an employee is hired, for example if an employee’s manager asks these sorts of questions.

According to the EEOC, disability-related inquiries are limited at three stages: pre-offer, post-offer, and employment.

The Three Stages

• Pre-offer: Pre-offer is the time before an applicant is offered employment. During this stage, the prospective employer is prohibited from all disability-related inquiries even if they are related to the job. During this stage, an employer can ask about an applicant’s ability to perform any essential function  of the job. An employer can also ask an applicant to demonstrate or describe how they would do a task, but must allow for reasonable accommodation to be used in order to do this.
• Post-offer: The post-offer stage is after an applicant is given a conditional job offer, but before starting work. At this stage, an employer may make disability-related inquiries, “regardless of whether they are related to the job, as long as it does so for all entering employees in the same job category.”
• Employment: At the employment stage, which starts when the employee begins work, an employer can make disability-related inquiries or require medical examinations that are “job-related and consistent with business necessity.”

Limitations of Disability-Related Inquiries

The limitation around disability-related inquiries applies to all applicants and employees. As the EEOC points out, “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.”¹ An inquiry is job-related and consistent with business necessity when an employer has a reason to believe, based on objective evidence, that an employee’s ability to perform a job is impacted by a disability or medical condition or an employee will pose a direct threat.

Reference

[1] US Equal Employment Opportunity Commission. (2005). Enforcement guidance: Disability-related inquiries and medical examinations of employees under the ADA.