Ask the HR Pro
By Ashleigh Petersen Ashley Cuttino, Ogletree Deakins, co-chair COVID-19 Litigation Practice Group
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Ask the HR Pro

Human Resources Tip of the Month

Q: Can I ask a job candidate about their disability and require a pre-employment medical exam?

A: At the correct time and following the correct protocols, it is acceptable for a prospective employer to ask candidates to take a pre-employment medical exam. However, there are conditions regarding what the employer can ask, what type of exam can be performed, and when in the hiring process an examination can take place. Most of the rules pertaining to pre-employment physical exams are covered by the Americans with Disabilities Act (ADA). The ADA applies to private companies with 15 or more employees. Many states impose the same laws on smaller employers.

Employers may not ask if an applicant has a disability, or about the nature or severity of a disability. They also may not require a medical exam before a job offer. Questions or actions that can be used to determine if an applicant has a disability or make assumptions about an individual’s ability to perform a job based solely on the presence of a disability or medical condition are prohibited.

Questions like these are not allowed, even if a disability or perceived disability seems obvious:

  • Do you have a disability?
  • What medications are you currently taking?
  • Have you filed any workers’ compensation claims?
  • Can you walk?
  • How did you become blind?

Employers are permitted to ask certain types of questions about an applicant’s ability to perform the essential functions of a job. They also are required to provide reasonable accommodations to qualified applicants with disabilities — unless doing so would impose undue hardship — that would allow them to participate in obtaining and performing a job.

As such, employers may ask applicants if they can perform the essential functions of the job, with or without reasonable accommodation.

Proper questions focus on one’s ability to perform a job:

  • Can you perform the essential functions outlined in the job description, with or without reasonable accommodation?
  • Can you describe how you would perform the main duties of the job, with or without reasonable accommodation?
  • Can you provide detail or resources to help us understand your requested accommodation and our options for meeting that accommodation?

To protect job applicants against discrimination, the ADA prohibits requiring a medical exam prior to extending a job offer. However, employers are allowed to ask prospective employees to take a medical exam after a conditional job offer is made, as long as they require all applicants for the same job to undergo the same exam. Pre-employment examinations may include physical exams as  well as health inquiries including drug and alcohol tests, psychological tests, and physical or mental health assessments.

It is expected that the person administering the exam fully understands the essential job functions to determine if the potential employee would be able to complete the duties required by the position. The results of the exam must be kept confidential and separate from their other records.

Employers also are required to make “reasonable accommodation” for candidates with disabilities to enable them to be considered for a job opening. They cannot refuse to consider candidates with disabilities who require accommodation.

A pre-employment medical exam assures employers that prospective employees are physically and mentally able to take on the responsibilities of a job. When conducting such tests it is important for an employer to understand the laws set out by the ADA and follow ADA protocols.

This column is provided by Ogletree Deakins, Atlanta, as part of a partnership with the American Rental Association (ARA) for ARA’s Human Resources Assistance Program. ARA members can receive a single sign on from the ARA webpage to a microsite specific to ARA on the Ogletree Deakins platform; get access to two 30-minute calls with an HR professional per year; access to an FAQ section as well as to Ogletree Deakins’ library of webinars; and access to Ogletree Deakins’ ARA-specific webinars. To learn more, visit ARArental.org/Manage-Business/HR.

Ashleigh Petersen

Ashleigh PetersenAshleigh Petersen

Ashleigh Petersen is the associate editor for Rental Management. She writes news and feature articles, plus coordinates the monthly Safety Issue and several sections in the magazine. Ashleigh loves spending time with her husband and young son, baking, gardening and listening to true crime and comedy podcasts.

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