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Q: We will be interviewing a nanny who came highly recommended. But we have heard from a friend that this nanny has been in and out of the hospital lately due to back pain. Is this something we can ask her 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 nanny 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 nanny believes she will need an accommodation, it’s her 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 her, she could claim that your decision was based on her disability, or was made because you regarded her as disabled, and was therefore unlawful discrimination.
Additionally, you should not solicit any further information about the nanny’s condition from your friends – any information that would be illegal to gather from her pre-offer is also illegal to gather from other sources.
If you decide to hire the nanny and extend a job offer, then you could request a medical examination or inquire about disabilities.
For more information and to learn how GTM provides solutions to issues like this for household employers, contact us at (888) 432-7972.
