The extent to which your employer can inquire about your disability varies depending on where the employee or applicant is in the employment process: (1) Pre-offer, (2) Pre-employment; and (3) During employment.
Pre-Offer - The ADA prohibits all disability-related inquiries and requests for medical examinations before an offer of employment is made. Thus, an employer may not question you about your disability during the interview or application phase. A "disability related inquiry" is defined as any question "that is likely to elicit information about a disability." This includes any questions regarding disability history, Workers' Compensation history, genetic history, or ongoing medical treatment or use of prescription drugs because such questions are likely to lead to information regarding the person's disability. Questions regarding an applicant's general well-being, illegal drug use, drinking, or an ability to perform certain job functions are allowed. The employer is allowed to inquire further in the pre-offer stage if the disability is considered "obvious," e.g. a missing limb, or if the applicant volunteers that he or she has a disability or advises that a reasonable accommodation will be needed.
Pre-employment - When a conditional offer of employment has been made, but the employee has yet to begin work, the employer is now permitted to inquire into the nature of any disability and can have the job candidate submit for a medical examination, so long as all applicants for that job category have to undergo such an examination. Although the employer can require a candidate submit to a medical exam as a pre-requisite to employment, this does not mean the employer can reject a candidate solely on the basis that a disability is disclosed through this process. Such an action is considered discrimination under the ADA. Testing for illegal drugs is not considered a "medical examination," and the employer may require this at any point in the employment process.
During Employment - Once the employee has begun his or her employment, any disability-related inquiry or request for a medical examination must be "job-related and consistent with business necessity." An employer can demonstrate that a disability-related inquiry and/or request for a medical exam meets this criteria where there is "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; or (3) In response to a request for a reasonable accommodation when the disability or need for accommodation is not known or obvious.
If the employee has requested a reasonable accommodation, then the employer can request medical documentation sufficient to substantiate the need for the request. The medical documentation the employee is required to submit must: (1) describe the nature, severity, and duration of the employee's impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee's ability to perform the activity or activities; and, (2) substantiate why the requested reasonable accommodation is needed.
An employer is not permitted to ask for a general medical history or a copy of your medical file. The employer's request must be specific to the disability. Documentation An employer is not allowed to compel the employee to undergo a medical examination with a doctor of the employer's choosing unless the documentation supplied by the employee does not satisfy the above criteria regarding sufficiency or the doctor that supplied the medical information for the employee is not qualified to give a medical opinion on the particular condition at issue. An employer's continuing to request different medical information or insistence on a medical exam where the documentation supplied is sufficient as defined above, can be considered retaliation prohibited by the ADA.
Stanley Wojculewski is an attorney living and practicing law in New Jersey. He maintains http://www.IBSJobLaw.com to provide information on employment rights with a focus on the working person suffering from Irritable Bowel Syndrome, Crohn's disease, colitis, and other digestive diseases.
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