Once a job offer has been made to a person with a disability, the employer may ask questions relating to the disability, as well as conduct medical examinations. The only restriction is that the same questions and examinations must be used with every employee in the same job category. If, during the course of the additional questions and medical examination, it becomes clear that the new hire cannot perform the essential job functions, or that they would pose a significant threat of harm to the health or safety to others or their self, you may withdraw the job offer. Before doing so, however, you should consider if there is a reasonable accommodation that could enable the person to complete the job duties.

Obviously, it’s important to have interview questions that will give you the information you need to assess the applicant’s ability to do the job, and how well they will fit into your company. However, care must also be taken not to ask questions which are discriminatory, and therefore illegal. The wording of a question can open you to discrimination claims, even if the intent is to obtain information that is legal to request. For example, you may not ask an applicant if they are a U.S. citizen, but you may ask if they are authorized to work in the U.S. It’s worth doing research to be sure you are asking appropriate questions! Other subjects to be sure you are clear about are race, color, sex, religion, national origin, birthplace, age, disability, and marital or family status.

Reasonable Accommodation for Disabled Employees

All employers with 15 or more employees are required by the ADA to make ‘reasonable accommodation’ for individual with disabilities to have equal employment opportunities. Examples of this would be a deaf person needing someone to read bulletin board notices, an interpreter for a deaf person during the interview, or special scheduling to accommodate a diabetics need for regular food and time to monitor blood sugar. Reasonable accommodations must be provided to disabled employees so that they can apply for, perform the duties of, and enjoy the benefits in their job equal to other employees. Reasonable accommodations do not mean that an employer must suffer undue hardship, such as a significant expense (based on the employers resources and normal business operation). Most such accommodations are actually very low cost, and can then often be offset with tax credits.

Until a job offer is made, an employer cannot ask questions related to a disability, nor can a medical examination be performed. All questions on both the application and during an interview should focus on non-medical job qualifications, education, and employment history. It is acceptable to ask a disabled applicant if they can meet the job’s essential requirements and duties. You may also ask why they left a previous job, about any past discipline, and how much time they took off in a previous position (but not the reasons). You may not ask about prior worker compensation history, use of medication, any question about their impairment, or how they became disabled. A person with a disability can be asked if they will need a reasonable accommodation to perform the job being applied for.

The Americans with Disabilities Act has the goal of providing equal access and opportunities to individuals with disabilities; it is not meant to give unfair advantage to the disabled. Employers are not required to hire a disabled person over a more qualified applicant. It is important for employers to be sure to provide equal opportunity to those with disabilities to both apply for, and work in, jobs for which they are otherwise qualified. It is also mandatory to provide disabled employees equal access to the benefits and privileges as other employees (including such things as training and health insurance), to assure the disabled are not harassed because of their disability, and to provide equal promotion opportunities for all employees without regard to disability.

The Americans with Disabilities Act (ADA) is a federal civil rights law designed to assist individuals with disabilities to integrate into mainstream society and to prevent discrimination against them. The EEOC (Equal Employment Opportunity Commission) handled the enforcement of ADA regulations. All businesses with 15 or more employees must comply with the ADA, which protects every person with a physical or mental impairment that substantially limits one or more major life activities (such as sleeping, standing, or sitting), or who has a record (perhaps in the past) of such a substantially limiting impairment, or who is treated or regarded by the employer as though they have that impairment (such as the employer having the fear of hiring a person who has had cancer but is now in remission because there might be a recurrence). Only a person who is otherwise qualified for the job is protected by the ADA. The employer is not required under the ADA to hire a person with a disability over a more-qualified person.

Many employers consider a comprehensive criminal background check as an important tool. Employers need to know that they are within the law when checking criminal backgrounds, and also to be sure the information is properly used in applicant screening activities.

Don’t Invite Discrimination Claims

Don’t leave yourself open to claims of discrimination by having a blanket policy against hiring anyone with a criminal conviction. Be sure you can show how it is a business necessity for an employee in a certain position to have a clean criminal record, or that requiring a clean criminal record has no adverse impact on any group that might apply for the job and who are protected by anti-discrimination laws.

As an employer, it’s important to know that Federal laws prohibit discrimination in many more areas than just hiring and firing. It is also illegal to discriminate in any aspect of employment, including the assignment, classification, and pay of employees; how employees are transferred, promoted, laid off, or recalled; the manner in which an employment advertises, recruits, and tests applicants; the use of company facilities and training or apprenticeship programs; and fringe benefits, retirement plans, and disability leave. Additionally, every employer should check state and local municipality for additional discrimination protections.