Background
In the past, some employment applications and interviews requested
information about an applicant's physical and/or mental condition.
This information was often used to exclude applicants with
disabilities before their ability to perform the job was even
evaluated.
For example, applicants may have been asked about their medical
conditions at the same time that they were engaging in other parts
of the application process, such as completing a written job
application or having references checked. If an applicant was
then rejected, s/he did not necessarily know whether s/he was
rejected because of disability, or because of insufficient skills
or experience or a bad report from a reference.
As a result, Congress established a process within the ADA to
isolate an employer's consideration of an applicant's non-medical
qualifications from any consideration of the applicant's medical
condition.
The Statutory and Regulatory Framework
Under the law, an employer may not ask disability-related
questions and may not conduct medical examinations until after it
makes a conditional job offer to the applicant.3 This helps
ensure that an applicant's possible hidden disability (including a
prior history of a disability) is not considered before the
employer evaluates an applicant's non-medical qualifications. An
employer may not ask disability-related questions or require a
medical examination pre-offer even if it intends to look at the
answers or results only at the post-offer stage.
Although employers may not ask disability-related questions or
require medical examinations at the pre-offer stage, they may do a
wide variety of things to evaluate whether an applicant is
qualified for the job, including the following:
* Employers may ask about an applicant's ability to perform
specific job functions. For example, an employer may state the
physical requirements of a job (such as the ability to lift a
certain amount of weight, or the ability to climb ladders), and
ask if an applicant can satisfy these requirements.
* Employers may ask about an applicant's non-medical
qualifications and skills, such as the applicant's education, work
history, and required certifications and licenses.
* Employers may ask applicants to describe or demonstrate how they
would perform job tasks.
Once a conditional job offer is made, the employer may ask
disability-related questions and require medical examinations as
long as this is done for all entering employees in that job
category. If the employer rejects the applicant after a
disability-related question or medical examination, investigators
will closely scrutinize whether the rejection was based on the
results of that question or examination.
If the question or examination screens out an individual because
of a disability, the employer must demonstrate that the reason for
the rejection is "job-related and consistent with business
necessity."4
In addition, if the individual is screened out for safety reasons,
the employer must demonstrate that the individual poses a "direct
threat." This means that the individual poses a significant risk
of substantial harm to him/herself or others, and that the risk
cannot be reduced below the direct threat level through reasonable
accommodation.5
Medical information must be kept confidential.6 The ADA contains
narrow exceptions for disclosing specific, limited information to
supervisors and managers, first aid and safety personnel, and
government officials investigating compliance with the ADA.
Employers may also disclose medical information to state workers'
compensation offices, state second injury funds, or workers'
compensation insurance carriers in accordance with state workers'
compensation laws7 and may use the medical information for
insurance purposes.8