EEOC
GUIDANCE ON PREEMPLOYMENT INQUIRIES UNDER
AMERICANS WITH DISABILITIES ACT
U.S.
Equal Employment Opportunity Commission
Washington, D.C. 20507
ADA
Enforcement Guidance:
Preemployment Disability-Related Questions and Medical Examinations
Introduction
Under
the Americans with Disabilities Act of 1990 (the “ADA”), an employer may ask disability-related questions and require medical examinations
of an applicant only after the applicant has been given a conditional
job offer. This Enforcement Guidance explains the ADA Provisions.
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 applications
process, such as completing a written job applications 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
Pre-Offer Stage
What
is a Disability-Related Question?
Definition: “Disability-Related
Question” means a question that is likely to elicit information about a disability.
At
the pre-offer stage, an employer cannot ask questions that are likely
to elicit information about a disability. This includes directly
asking whether an applicant has a particular disability. It also
means that an employer cannot ask questions that are closely related
to disability.
On
the other hand, if there are many possible answers to a question
and only some of those answers would contain disability-related information,
that question is not “disability-related.”
Below
are some commonly asked questions about this area of the law.
May
an employer ask whether an applicant can perform the job?
Yes.
An employer may ask whether applicants can perform any or all job
functions, including whether applicants can perform job functions “with or without reasonable accommodations.”
May
an employer ask applicants to describe or demonstrate how they
would perform the job (including any needed reasonable accommodations)?
Yes.
An employer may ask applicants to describe how they would perform
any or all job functions, as long as all applicants in the job category
are asked to do this.
Employers
should remember that, if an applicant says that s/he will need a
reasonable accommodation to do a job demonstration, the employer
must either:
Provide
a reasonable accommodation that does not create an undue hardship:
or Allow the applicant to simply describe how s/he would perform
the job function.
May
an employer ask a particular applicant to describe or demonstrate
how s/he would perform that job, if other applicants aren’t asked to do this?
When
an employer could reasonable believe that an applicant will not be
able to perform a job function because of a known disability, the
employer may ask that particular applicant to describe or demonstrate
how s/he would perform the function. An applicant’s disability would be a “known disability” either because it is obvious (for example, the applicant uses a wheelchair),
or because the applicant has voluntarily disclosed that s/he has
a hidden disability.
May
an employer ask applicants whether they will need reasonable accommodation
for the hiring process?
Yes.
An employer may tell applicants what the hiring process involves
(for example, and interview, timed written test, or job demonstration),
and may ask applicants whether they will need a reasonable accommodation
for this process.
May
an employer ask an applicant for documentation of his/her disability
when the applicant requests reasonable accommodation for the hiring
process?
Yes.
If the need for accommodation is not obvious, an employer may ask
an applicant for reasonable documentation about his/her disability
if the applicant requests reasonable accommodation for the hiring
process (such as a request for the employer to reformat an examination,
or a request for an accommodation in connection with job demonstration).
The employer is entitled to know that the applicant has a covered
disability and that s/he needs an accommodation.
So,
the applicant may be required to provide documentation from an appropriate
professional, such as a doctor or a rehabilitation counselor, concerning
the applicant’s disability and functional limitations.
May
an employer ask applicants whether they will need reasonable accommodation
to perform the functions of the job?
In
general, an employer may not ask questions on an application or in
an interview about whether an applicant will need reasonable accommodation
for a job. This is because these questions are likely to elicit whether
the applicant has a disability (generally, only people who have disabilities
will need reasonable accommodations).
Example:
An employment application may not ask, “Do you need reasonable accommodations to perform this job?”
Example:
An employment application may not ask “Can you do this function with___ without___ reasonable accommodation? (Check
one).
May
an employer ask whether an applicant can meet the employs’ attendance requirements?
Yes.
An employer may state its attendance requirements and ask whether
an applicant can meet them. An employer also may ask about an applicant’s prior attendance record (for example, how many days the applicant was absent
from his/her last job). These questions are not likely to elicit
information about a disability because there may be many reasons
unrelated to disability why someone cannot meet attendance requirements
or was frequently absent from a previous job (for example, an applicant
may have had day-care problems). An employer also may ask questions
designed to detect whether an applicant abused his/her leave because
these questions are not likely to elicit information about a disability.
Example:
An employer may ask an applicant how many Mondays and Fridays were
you absent last year on leave other than approved vacation leave?”
However,
at the pre-offer stage, an employer may not ask how many days an
applicant was sick, because these questions relate directly to the
severity of an individual’s impairments. Therefore, these questions are likely to elicit information about
a disability.
May
an employer ask applicants about their certifications and licenses?
Yes.
An employer may ask an applicant at the pre-offer stage whether s/he
has certifications or licenses required for any job duties. An employer
also may ask an applicant whether s/he intends to get a particular
job-related certification or license. These questions are not likely
to elicit information about an applicant’s disability because there may be a number of reasons unrelated to disability
why someone does not have or does not intend to get a certification/license.
May
an employer ask applicants about their arrest or conviction record?
Yes.
Questions about an applicant’s arrest or conviction records are not likely to elicit information about disability
because there are many reasons unrelated to disability why someone
may have an arrest/conviction record.
May
an employer ask question about an applicant’s impairments?
Yes.
If the particular question is not likely to elicit information about
whether the applicant has a disability. It is important to remember
that not all impairments will be disabilities; an impairment is a
disability only if it substantially limits a major life activity.
So, an employer may ask an applicant with a broken leg how she broke
her leg. Since a broken leg normally is a temporary condition which
does not rise to the level of a disability, this question is not
likely to disclose whether the applicant has a disability. But such
questions as “Do you expect the leg to heal normally?” or “Do you break bones easily?” would be disability -related. Certainly, an employer may not ask a broad question
about impairments that is likely to elicit information about disability,
such as, “What impairments do you have?”
May
an employer ask whether applicants can perform major life activities,
such as standing, lifting, walking, etc.?
Questions
about whether an applicant can perform major life activities are
almost always disability-related because they are likely to elicit
information about a disability. For example, if an cannot stand or
walk, it is likely to be a result of a disability. So, these questions
are prohibited at the pre-offer stage unless they are specifically
about the ability to perform job functions.
May
an employer ask applicants about their worker’s compensation history?
No.
An employer may not ask applicants about job-related injuries or
workers’ compensation history. These questions relate directly to the severity of an
applicant’s impairments. Therefore, these questions are likely to elicit information about
disability.
May
an employer ask applicants about their current illegal use of drugs?
Yes.
An employer may ask applicants about current illegal use of drugs
because an individual who currently illegally uses drugs is not protected
under the ADA (when the employer acts on the basis of the drug use).
May
an employer ask applicants about their lawful drug use?
No.
The question is likely to elicit information about disability. Employers
should know that many questions about current or prior lawful drug
use are likely to elicit information about a disability, and are
therefore impermissible at the pre-offer stage. For example, questions
like, “What medications are you currently taking?” or “Have you ever taken AZT?’ certainly elicit information about whether an applicant has a disability.
However,
some innocuous questions about lawful drug use are not likely to
elicit information about disability.
Example:
During her interview, an applicant volunteers to the interviewer
that is coughing and wheezing because her allergies are acting up
as a result of pollen in the air. The interviewer, who also has allergies,
tells the applicant that he finds “lemebreathe” (an over-the-counter antihistamine) to be effective, and asks the applicant
if she has tried it. There are many reasons why someone might have
tried “Lemebreather: which have nothing to do with disability. Therefore, this question
is not likely to elicit information about a disability.
May
an employer ask applicants about their lawful drug use if the employer
is administering a test for illegal use of drugs?
Yes,
if an applicant tests positive for illegal drug use. In that case,
the employer may validate the test results by asking about lawful
drug use or possible explanations for the positive result other than
the illegal use of drugs.
Example:
If an applicant tests positive for use of a controlled substance,
the employer may lawfully ask questions such as, “What medications have you taken that might have resulted in this positive test
result? Are you taking this medication under a lawful prescription?”
May
an employer ask applicants about their prior illegal drug use?
(Yes,
provided that the particular question is not likely to elicit information
about a disability. It is important to remember that past addiction
to illegal drugs or controlled substances is a covered disability
under the ADA, as long as the person is not a current illegal drug
user), but past casual use is not a covered disability. Therefore,
the question is fine as long as it does not go to past drug addiction.
Example:
An employer may ask, “Have you ever used illegal drugs?” “When was the last time you used illegal drugs?” or “Have you used illegal drugs in the last six months?” These questions are not likely to tell the employer anything about whether the
applicant was addicted to drugs.
However,
questions that ask how much the applicant used drugs in the past
are likely to elicit information about whether the applicant was
a past drug addict. These questions are therefore impermissible at
the pre-offer stage.
May
an employer ask applicants about their drinking habits?
Yes,
unless the particular question is likely to elicit information about
alcoholism, which is a disability. An employer may ask an applicant
whether s/he drinks alcohol, or whether s/he has been arrested for
driving under the influence because, these questions do not reveal
whether someone has alcoholism. However, questions asking how much
alcohol an applicant drinks or whether s/he has participated in an
alcohol rehabilitation program are likely to elicit information about
whether the applicant has alcoholism.
May
an employer ask applicants to “self-identify” as individuals with disabilities for purposes of the employer’s affirmative action program?
Yes.
An employer may invite applicants to voluntarily self-identify for
purposes of the employer’s affirmative action program if:
The
employer is undertaking affirmative action because of federal, state,
or local law (including a veterans’ preference law) that requires affirmative action for individuals with disabilities
( that is, the law requires some action to be taken on behalf of
such individuals); or the employer is voluntarily using the information
to benefit individuals with disabilities.
Employers
should remember that state or local laws sometimes permit or encourage
affirmative action. In those cases, and employer may invite voluntary
self-identification to benefit individuals with disabilities.
Are
there any special steps an employer should take if it asks applicants
to “self-identify” as individuals with disabilities for purposes of the employers’ affirmative action program?
Yes.
If the employer invites applicants to voluntarily self-identify in
connection with providing affirmative action, the employer must do
the following:
State
clearly on any written questionnaire, or state clearly orally (if
no written questionnaire is used), that the information requested
is used solely in connection with its affirmative action obligations
or efforts; and state clearly that the information is being requested
on a voluntary basis, that it will be kept confidential in accordance
with the ADA, that refusal to provide it will not subject the applicant
to any adverse treatment, and that it will be used only in accordance
with the ADA.
In
order to ensure that the self-identification information is kept
confidential, the information must be on a form that is kept separate
from the application.
May
an employer ask third parties questions it could not ask the applicant
directly?
No.
An employer may not ask a third party (such as a service that provides
information about workers’ compensation claims, a state agency, or a an applicant’s friends, family, or former employers) any questions that it could not directly
ask the applicant.
May
an employer require applicants to take physical fitness test?
Yes.
A physical fitness test, in which an applicant’s performance of physical tasks, such as running or lifting, is measured, is
not a medical examination.
However,
if an employer measure an applicant’s physiological or biological responses to performance, the test would be medical.
Example;
A messenger service tests applicants’ ability to run one mile in 15 minutes. At the end of the run, the employer takes
the applicant’s blood pressure and heart rate. Measuring the applicant’s responses makes this a medical examination.
May
an employer ask an applicant to provide medial certification that
s/he can safely perform a physical agility or physical fitness
test?
Yes.
Although an employer cannot ask disability-related questions, it
may give the applicant a description of the agility or fitness test
and ask the applicant to have a private physician simply state whether
s/he can safely perform the test.
May
an employer ask an applicant to assume liability for injuries incurred
in performing a physical agility or physical fitness test?
Yes.
An employer may ask an applicant to assume responsibility and release
the employer of liability for injuries incurred in performing a physical
agility or fitness test.
May
an employer give psychological examinations to applicants?
Yes,
unless the particular examination is medical. This determination
would be based on some of the factors listed above, such as the purpose
of the test and the intent of the employer in giving the test. Psychological
examinations are medical if they provide evidence that would lead
to identifying a mental disorder or impairment.
Example:
An employer gives applicants the RUOK test (hypothetical), and examination
which reflects whether applicants have characteristics that lead
to identifying whether the individual has excessive anxiety, depression,
and certain compulsive disorders. This test is medical .
On
the other hand, if a test is designed and used to measure only things
such as honesty, tastes, and habits, it is not medical.
Example:
An employer gives the IFIB Personality Test (hypothetical), an examination
designed and used to reflect only whether an applicant is likely
to lie. This test, as used by the employer, is not a medical examination.
May
an employer give polygraph examinations to applicants?
Although
most employers are prohibited by federal and state laws from giving
polygraph examinations, some employers are not prohibited from giving
these examinations. Under the ADA, polygraph examinations are not
medical examinations.
Many
times, however, polygraph examinations contain disability-related
questions, such as questions about what lawful medications the applicant
is taking. Employers cannot ask disability-related questions as part
of a pre-offer examinations, even if the examination is not itself “medical”.
May
an employ give vision tests to applicants?
Yes,
unless the particular test is medical. Evaluating someone’s ability to read labels or distinguish objects as part of a demonstration of
the person’s ability to do the job is not a medical examination. However, an ophthalmologist’s or optometrist’s analysis of someone’s vision is medical. Similarly, requiring an individual to read an eye chart
would be a medical examination.
May
an employer give applicants test to determine illegal use of controlled
substances?
Yes.
The ADA specifically states that, for purposes of the ADA, tests
to determine the current illegal use of controlled substances are
not considered medical examinations.
May
an employer give alcohol test to applicants?
No.
Tests to determine whether and/or how much alcohol an individual
has consumed are medical, and there is no statutory exemption.
The
Post-Offer Stage
After
giving a job offer to an applicant, an employer may ask disability-related
questions and perform medical examinations. The job offer may be
conditioned on the results of post-offer disability-related questions
or medical examinations.
At
the “post-offer stage, an employer may ask about an individual’s workers’ compensation history, prior sick leave usage, illnesses/diseases/impairments,
and general physical and mental health. Disability-related questions
and medical examinations at the post-offer stage do not have to be
related to the job.
If
an employer asks post-offer disability-related questions or requires
post-offer medical examinations, it must make sure that it follows
certain procedures:
All
entering employees in the same job category must be subjected to
the examination/inquiry, regardless of disability; and medical information
obtained must be kept confidential.
Below
are some commonly asked questions about the post-offer stage.
What
is considered a real job offer?
Since
an employer can ask disability-related questions and require medical
examinations after a job offer, it is important that the job offer
be real. A job offer is real if the employer has evaluated all relevant
non-medical information which it reasonably could have obtained and
analyzed prior to giving the offer. Of course, there are times when
an employer cannot reasonably obtain and evaluate all non-medical
information at the pre-offer stage. If an employer can show that
is the case, the offer would still be considered a real offer.
Example:
It may be too costly for a law enforcement employer wishing to administer
a polygraph examination to administer a pre-offer examination asking
non-disability-related questions, and a post-off examination asking
disability-related questions. In this case, the employer may be able
to demonstrate that it could not reasonable obtain and evaluate the
non-medical polygraph information at the pre-offer stage.
Example:
An applicant might state that his current employer should not be
asked for a reference check until the potential employer makes a
conditional job offer. In this case, the potential employer could
not reasonably obtain and evaluate the non-medical information from
the reference at that pre-offer stage.
Do
offers have to be limited to current vacancies?
No.
An employer may give offers to fill current vacancies or reasonably
anticipated openings.
May
an employer give offers that exceed the number of vacancies or
reasonably anticipated openings?
Yes.
The offers will still be considered real if the employer can demonstrate
that it needs to give more offers in order to actually fill vacancies
or reasonably anticipated opening. For example, an employer may demonstrate
that a certain percentage of the offerees will likely be disqualified
or will withdraw from the pool. Example: A police department may
be able to demonstrate that it needs to make offers to 50 applicants
for 25 positions because about half of the offers will likely be
revoked based on post-offer medical tests and/or security checks,
and because some applicants may voluntarily withdraw from consideration.
Of
course, an employer must comply with the ADA when taking people out
of the pool to fill actual vacancies. The employer must notify an
individual (orally or in writing) if his/her placement into an actual
vacancy is in any way adversely affected by the results of a post-offer
medical examination or disability-related question.
If
an individual alleges that disability has affected his/her placement
into an actual vacancy, the EEOC will carefully scrutinize whether
the action was job-related and consistent with business necessity.
After
an employer has obtained basic medical information from all individuals
who have been given conditional offers in a job category, may it
ask specific individuals for more medical information?
Yes,
if the follow-up examinations or questions are medically related
to the previously obtained medical information.
Example:
At the post-offer stage, an employer asks new hires whether they
have had back injuries, and learns that some of the individuals have
had such injuries. The employer may give medical examinations designed
to diagnose back impairments to persons who stated that they had
prior back injuries, as long as these examinations are medically
related to those injuries.
At
the post-offer stage, may an employer ask all individuals whether
they need reasonable accommodation to perform the job?
Yes.
If
at the post-offer stage, someone requests reasonable accommodation
to perform the job, may the employer ask him/her for documentation
of his/her disability?
Yes.
If someone requests reasonable accommodation so s/he will be able
to perform a job and the need for the accommodation is not obvious,
the employer may require reasonable documentation of the individual’s entitlement to reasonable accommodation. So, the employer may require documentation
showing that the individual has a covered disability, and stating
his/her functional limitations.
Example:
An entering employee states that she will need a 15 minute break
every two hours to eat a snack in order to maintain her blood sugar
level. The employer may ask her to provide documentation from her
doctor showing that: (1) she has an impairment that substantially
limits a major life activity; and (2) she actually needs the requested
breaks because of the impairment.
Confidentiality
An
employer must keep any medical information on applicants or employees
confidential, with the following limited exceptions:
