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On Wednesday, I blogged, “If your job applications look anything like this, well, damn, you’ve got some ADA problems.”
“This” was a medical questionnaire that inquired about certain medical conditions, whether the employee had an impairment or disability, and whether the employee had previous surgery or received a permanent disability rating.
In other words, questions that were designed to elicit information about whether an individual has a disability.
Not surprisingly, readers asked some good follow-up questions about related ADA issues; stuff that wasn’t part of the low-hanging fruit that the EEOC plucked when it sued the employer with the bad medical questionnaire.
For everyone’s benefit, let’s address those questions today.
Can we ask job applicants about requiring an accommodation in their application process?
Yes, according to the EEOC.
Ordinarily, “before a job offer has been made, you can’t ask questions about an applicant’s disability or questions that are likely to reveal whether an applicant has a disability.” However, “[a]n employer may tell applicants what the hiring process involves (e.g., an interview, timed written test, or job demonstration), and may ask applicants whether they will need a reasonable accommodation for this process.”
For more on reasonable accommodations and job applications and job applicants, check out this EEOC resource.
Can we ask applicants about disabilities as part of an affirmative action program?
Again, the answer is yes.
You also can ask an applicant to voluntarily report that she has a disability for affirmative action purposes. However, the employer must tread carefully and explain why it is requesting this information.
Can we ask the disability-related questions, pre-offer, to a third party instead of the applicant?
No, you may not.
According to the EEOC, “[a]n employer may not ask a third party (such as a service that provides information about workers’ compensation claims, a state agency, or an applicant’s friends, family, or former employers) any questions that it could not directly ask the applicant.”