From the desk of Beth Loy, Ph.D., Principal Consultant
JAN has been around for about 30 years so as you might imagine, we’ve heard just about everything there is to hear about job accommodations and the ADA. Over the years, one thing we’ve heard repeatedly is that employers are sometimes confused about how the ADA applies at the job application/interview stage of employment. So, we thought we’d address some of the issues that tend to cause this confusion.
We always like to start with the general ADA rules and then discuss any exceptions, so here are the general dos and don’ts that apply at the job application/interview stage:
- Don’t focus on an applicant’s disability.
- Don’t ask unnecessary medical questions or require unnecessary medical examinations or documentation.
- Don’t base hiring decisions on myths, fears, or stereotypes about people with disabilities.
- Do focus on an applicant’s qualifications.
- Do get the information needed to determine whether an applicant is qualified.
- Do base hiring decisions on skills, qualifications, and experience.
1. What happens if an applicant has an obvious disability?
What you do in this case depends on the applicant’s limitations and the job he’s applying for. Before asking any questions about the applicant’s disability, the interviewer must have a reasonable belief, based on objective evidence that the disability will potentially interfere with job performance.
In many cases, an applicant’s obvious disability will not be relevant to whether he can perform the job. For example, an applicant for a clerical position uses a wheelchair, but has full use of his arms and hands. The job involves data entry and some phone work. There does not appear to be a valid reason for the interviewer to ask questions about the applicant’s use of a wheelchair.
In other cases, an applicant’s obvious disability is relevant. Take the same applicant in a wheelchair, but this time he’s applying for a warehouse stock clerk job, which involves retrieving items off of tall shelves in the warehouse to fill customer orders. In this case, there are valid questions about how the applicant is going to do the job so the interviewer can ask the applicant to explain or demonstrate how he will retrieve items from tall shelves.
2. What happens if an applicant brings up medical information?
The good news is that the answer to the previous question above applies here as well. What if you’re not sure whether the applicant’s disclosure is relevant to his ability to participate in the job interview or his qualifications for the job? One thing you can always do if someone discloses during the job interview is to ask “is there anything you need in order to participate in the interview or to perform the job tasks”? This question acknowledges the applicant’s disclosure, but stops short of asking any specific questions about the applicant’s medical condition. It also gives the applicant the chance to ask for an accommodation if one is needed or to clarify why he is disclosing.
3. What happens if an applicant asks for an accommodation for the job interview?
When an applicant asks for an accommodation for the job interview, the employer can require medical documentation. This is an exception to the general rule that employers cannot ask medical questions or require medical documentation prior to a job offer. What is allowed when someone asks for an accommodation? You’re basically allowed to get the information you need to verify that the applicant has a disability and needs the accommodation and whatever information is necessary to process the request and come up with successful accommodations.
Do you have to get all this information? Not necessarily. You may want to just provide the accommodation and skip the medical documentation, especially when there is a time crunch.
4. What happens if disability is a qualification standard?
For example, what if you want to hire someone with a history of drug addiction for a position as a peer counselor for people with drug addiction who are currently undergoing treatment? In this case, having a disability is a qualification standard. Does that mean you can ask applicants whether they have a disability? The answer is “maybe.” While it might be better to follow the rules for affirmative action hiring (invite voluntary disclosure, but don’t ask specific disability-related questions until post offer), according to informal guidance from the Equal Employment Opportunity Commission, this situation might provide an exception to the general rule that employers cannot ask applicants whether they have a disability prior to a job offer. For more information, see: http://www.eeoc.gov/eeoc/foia/letters/2007/ada_disability_1.html
The general rule is no medical inquiries or exams at the application/interview stage. One exception to this rule is when an applicant asks for an accommodation for the application/interview process. Then you’re allowed to ask medical questions or require documentation to show that the applicant has a disability and needs the accommodations WHEN it’s not obvious.
Another exception is when you have a reasonable belief based on objective evidence that the applicant is going to have trouble performing the job because of a known or obvious disability. Here you’re allowed to ask medical questions, but you cannot send the applicant for a medical exam or require medical documentation. Medical exams and documentation related to job performance must wait until post offer under this exception.
And a potential final exception is when having a disability is a qualification for the job, but it might be better to wait until post job offer to confirm that an applicant has the requisite disability if the applicant did not voluntarily disclose.
For more information, see: