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:
