Don’t Ask Pre-Employment Medical Questions

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The Americans with Disabilities Act (“ADA”) was passed in 1990 and was designed to protect qualified individuals with a disability from discrimination in performing the essential functions of a job. Once an employer is put on notice that an individual has a disability which interferes with a major life function (such as work), the employer is under an obligation to engage in an interactive dialogue with the employee to see if there is a reasonable accommodation that can be offered to allow the employee to perform the essential parts of the job. An employer may not be obligated to offer the best or most expensive option available, just one that will reasonably work without creating an undue burden on the employer or subject the employee or others to a health/safety risk. The ADA also carries a prohibition against asking medical questions at the pre-offer stage. Employers need to be mindful of this guideline so as not to end up on the wrong side of an EEOC investigation or lawsuit!

Take the case of poor Mr. Sullivan who saw a job application online for a company looking for help. The application was fairly routine, but along with it was a 3 page, set of 43 questions which sought all kinds of medical information which must be submitted along with the application. Sullivan was concerned that if he filled out the questionnaire, it would disclose his disabilities and he was afraid the employer would automatically screen him out of the interview process. Instead of filling out the questionnaire, Sullivan immediately filed a Charge with the EEOC claiming disability discrimination. The EEOC is the government agency empowered to investigate and eradicate workplace discrimination. However, in this instance. Poor Mr. Sullivan was not a member of the “workplace” and he had not even applied. The prospective employer had no idea if Sullivan had any type of disability and Sullivan never bothered to apply. Yet, the EEOC found that the employer’s practice was severe enough to file a lawsuit on his behalf and warranted the imposition of heavy damages.

genetic information nondiscrimination actThe lesson for employers is to be careful at the pre-offer stage. Under the ADA, the effects and injuries of discriminatory employment practices are not limited to situations where job applicants are expressly denied employment, but also where discriminatory policies deter job applicants who are aware of the policies and do not want to subject to the humiliation of explicit and certain rejection.

Aside from the ADA, this pre-offer practice of seeking medical information also violated the Genetic Information Non-Discrimination Act of 2008 (“GINA).  The employer may have been concerned about the costs to its medical or other benefits based on a predisposition towards certain genetic traits. GINA expressly prohibits an employer from requesting genetic information with regard to an employee or family member of the employee. Under the definition of an “employee” under GINA, applicants for jobs are covered as well.

Employers should never ask job applicants any questions regarding the applicant’s medical history, disabilities or genetic information at the pre-offer stage. Employers may ask questions related to the job and whether the applicant can fulfill the job related functions required of the position. However, employers should phrase their questions with caution lest they inadvertently touch upon an applicant’s disability or genetic information and end up subjecting the employer to unwanted and costly liability.

With over 30 years’ experience in advising employees and businesses on labor and employment issues, let Boznos Law work with you to ensure you are ready to meet the challenges posed by the ever changing employment law landscape. Call Bill Boznos today at (630) 375-1958 or contact us through our website.

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