Complying With the ADA During Hiring Employers can easily forget that the Americans With Disabilities Act applies not only to employment but also to the hiring process. The EEOC recently released a fact sheet explaining how employers can comply with the ADA while screening potential employees. If you’re an employer, here’s what you need to know. No discrimination Generally, if you have 15 or more employees, the ADA bars you from discriminating against qualified persons with disabilities. Protected persons include those with a physical or mental impairment that substantially limits a major life activity — or with a record of a substantially limiting impairment — and those regarded or perceived as having an impairment. But disabled persons must satisfy your education, training and skills requirements for a position. Disabled persons must be able to perform a job’s “essential functions” — or fundamental duties — with or without “reasonable accommodation.” But you don’t have to provide reasonable accommodation if doing so would cause you “undue hardship” — defined as significant difficulty or expense. Reasonable accommodation The ADA bars you from excluding candidates because they require reasonable accommodation to compete for a job, even if that will cause you some additional financial or administrative cost. If an applicant’s requested accommodation causes undue hardship, you must offer an alternative. The EEOC cites several examples of reasonable accommodation during hiring: o Providing written materials in accessible formats — such as Braille or audiotape, o Providing readers or sign-language interpreters, o Providing or modifying equipment, or o Adjusting or modifying application policies and procedures. If you include testing as part of hiring, you may need to appropriately accommodate test-takers who have some learning disabilities or impaired sensory, speaking or manual skills. You must administer application tests so that an applicant needn’t use an impaired skill — unless the test measures that skill. After a candidate establishes a need for accommodation during the hiring process, you must offer a reasonable accommodation that meets that person’s disability needs. If more than one accommodation will meet those needs, you may choose which to provide. An applicant isn’t entitled to a specific accommodation. Forbidden questions Before conditionally offering employment, you may not require a physical exam or ask written or oral questions designed to reveal disabilities. You can’t ask questions such as: o Whether applicants have a disability that would interfere with their ability to perform the job, o How many days an applicant was sick last year, o Whether an applicant has ever filed for workers’ compensation benefits, or o What prescription drugs applicants currently take. But you can make these inquiries after extending a conditional offer and before employment begins if you ask them of all applicants for a position. You can’t ask these questions or require medical exams “only of those who have obvious disabilities,” according to the EEOC. The presence of an obvious disability or the disclosure of a hidden disability doesn’t allow you to ask disability-related questions before offering employment. Nevertheless, you can ask whether applicants can perform specific job functions or ask them to describe or demonstrate how they would perform essential tasks. You may require a post-offer medical exam, but you can’t withdraw a job offer solely because an exam reveals a disability. You may retract offers only when candidates can’t perform essential job functions with or without reasonable accommodation or if they pose a significant risk of causing substantial harm to themselves or others. Confidentiality The ADA requires you to maintain the confidentiality of medical information disclosed at any stage of the hiring process — whether voluntary, in response to written or oral questions, or during a medical exam. But you may use medical information for insurance purposes and share it with decision makers who require it to make ADA-consistent employment decisions. And you may share it with some others — such as supervisors who must know about reasonable accommodations and work restrictions. After hiring Of course, the ADA doesn’t require job applicants to disclose their need for accommodation at any specific time, so employers may not find out until after hiring. For advice on how best to comply with reasonable-accommodation requests on the job, contact our attorneys. Contact | Legal Disclaimer