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Q: We received an application from someone who has worked for our grocery store in the past. A few of our current employees tell me that this applicant has been in and out of the hospital lately due to severe back pain. Is this something we can ask him about during the interview?
A: According to the Americans with Disabilities Act (ADA), asking applicants about disabilities prior to making at least a conditional offer of employment is not permitted. The only disability-related question you may ask pre-hire is, “Are you able to perform the essential functions of this job?” or “Are you able to perform the job duties that I have described to you?” In order to get the most useful answer to this question, you should ensure that applicants have been informed of what the essential functions of the position are through a detailed job posting, explanation during the interview, or, as a best practice, both.
In this case, the alleged back pain may no longer be troubling the applicant or, if it’s still a problem, it may be something you can reasonably accommodate. Either way, you shouldn’t ask about it. If the applicant believes he will need an accommodation, it’s his responsibility to inform you of the disability and request an accommodation. If you were to ask about the back pain or hospital visits and then not hire the applicant, he could claim that your decision was based on his disability, or was made because you regarded him as disabled, and was therefore unlawful discrimination.
Additionally, you should not solicit any further information about the applicant’s condition from your current employees – any information that would be illegal to gather from him pre-offer is also illegal to gather from other sources.
If you decide to hire the applicant and extend a job offer, then you could request a medical examination or inquire about disabilities. However, you should do this only if you will be asking the same of all other employees hired into that type of position.
For more information and to learn how GTM provides HR solutions to businesses, contact us at (518) 373-4111.
