Exercise Caution First Determine if Medical Inquiry Violates the ADA

It is very important for employers to be aware of the scope of proper medical inquiries under the Americans with Disabilities Act. This is especially important considering that some courts will even allow nondisabled plaintiffs to pursue an ADA claim regarding improper medical inquiries. The Equal Employment Opportunity Commission offers the following advice on abiding by the ADA:

Pre-offer applicants:
Before making a job offer, an employer is forbidden from asking an applicant whether he or she is disabled. The employer is also forbidden from asking about the nature or severity of a known disability. Finally, the employer may not require the applicant to take a medical examination before making a job offer.

Nevertheless, the employer may ask questions the applicant’s about ability to perform job-related functions, so long as the questions are not phrased in terms of disability. The employer may also ask the applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions.

Post-offer prospective employees:
After a job offer is made, but prior to the commencement of employment duties, the employer may require the applicant to take a medical examination if everyone who will be working in the job category must also take the examination. The employer may lawfully condition the job offer on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, the employer must be able to show that the reasons for exclusion are job related and consistent with business necessity. The employer must also be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

Current employees:
Once the employee has begun his or her job, the employer cannot require a medical examination or ask the employee questions about disability unless it can show that these requirements are job related and consistent with business necessity. However, the employer may offer voluntary medical examinations that are part of an employee health program.

The results of any medical examinations and any information gained from medical inquiries about a disability must be kept confidential and maintained in separate medical files. State workers’ compensation agencies, however, may receive medical information that is necessary for their administration of state workers’ compensation laws.

SOURCE: U.S. Equal Employment Opportunity Commission.

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