The Americans with Disabilities Act and the ADA Amendment Act require employers avoid medical and disability conditions in the interview process. Most larger employers know that, even though they run afoul of the law more than they should. Most smaller employers may not be aware of the prohibition and subsequently they make mistakes all the time. The two key phrases that guide the hiring decisions under the ADA are job related and consistent with business necessity.
Requirements of the law
In employment the purpose of the ADA is to insure that applicants are evaluated on the basis of their skills and abilities rather than their disabilities. For this reason an employer is not allowed to ask medical related questions during the interview process. The employer can determine if the applicant is able to perform the essential functions of the job with or without a reasonable accommodation. Of course this means you need to understand what the “essential functions” of the job to begin with. So proper hiring begins with the interviewer(s) reviewing the job. The essential functions are those things that are the reason the job exists. You can find more guidance here.
The ADA prohibits medical exams, unless there is a valid necessity to do so, and only if every candidate that is applying for the same job is also required to take the medical exam. Even if the candidate fails to pass the physical exam you cannot reject them as a candidate. The ADA Amendments Act requires an individual assessment that explores further the ability to perform the job with an accommodation. This is to be documented in an “interactive discussion” and the employer must make a decision if the needed accommodation is reasonable or not. Guidance on that can also be found here.
Job related and business necessity
It is in the interactive discussion and the assessment where the employer must be thinking in terms of job relatedness and consistent with business necessity. Attorney Tiffany Robertson provides an example. She says “the U.S. Equal Employment Opportunity Commission (EEOC) recently won a motion for summary judgment against an employer who revoked an applicant’s job offer after a medical exam revealed that the applicant had undergone back surgery six years prior. Assuming he was disabled, the employer asserted that because the applicant was unable to provide a medical release related to the surgery, he was unfit for the job. The employer asserted it was acting responsibly in attempting to provide a safe working environment by obtaining independent medical advice to determine whether applicants are fit for duty.” Unfortunately for the company the court did not agree. They did not see the business necessity of having the release. She says further “without conducting any sort of individualized assessment, the employer was merely relying on ‘myths and fears’ to presume the applicant’s previous back surgery would expose it to liability.”
The best course of action in cases where you are dealing with a candidate that may have a disability that will require an accommodation is to make sure you are engaging in the interactive discussion. Don’t rely solely on a doctor’s evaluation on the candidate’s ability to do the job. Use that evaluation as the starting point for further the interactive discussion. Then make your decision. Oh, and by the way, document the hell out of process.
Thanks to Tiffany Robertson for the inspiration for this post.