The American With Disabilities Act (ADA) limits an employer’s ability to make disability-related inquiries or require medical exams at three stages: pre- job offer, post- job offer, and during employment. A “disability-related inquiry” is a question (or series of questions) that is likely to elicit information about the applicant’s or employee’s disability. A “medical examination” is a procedure or test that seeks information about an individual’s physical or mental impairments or health.
Prior to an offer of employment, the ADA prohibits all disability-related inquiries and medical examinations, even if they are related to the job. An employer cannot ask applicants medical questions or require medical exams at this stage.
After an applicant is given a conditional job offer, but before he or she starts work, an employer may make disability-related inquiries and conduct medical examinations, regardless of whether they are related to the job, as long as the employer does so for all employees entering in the same job category.
After employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
A disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.” “Direct threat” means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation. The employer may not make assumptions about an individual’s condition or that the individual poses a “direct threat”, but must conduct an individualized assessment.
Finally, an employer can also seek medication information or examination in connection with an employee’s request for reasonable accommodation if the employee’s disability or need for accommodation is not known or obvious. However, such requests should be limited – an employer can require only that the employee provide documentation sufficient to establish that s/he has an ADA-covered disability and needs the accommodation requested. An employer cannot ask for documentation unrelated to the disability or need for accommodation.
If you believe that a prospective employer or your current employer has made improper disability related inquires and/or required an improper medical examination, contact us to talk with our experienced attorneys.
