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Can We Ask an Applicant about a Previous Disability?

previous disabilityAn individual submits an application to your organization that has previously worked for you before. You have heard that this individual has been in and out of the hospital in the recent past due to sever back pain. Is this something you can ask him about during the interview?

According to the Americans with Disabilities Act (ADA), an organization may not ask an applicant about any disabilities prior to making at least a conditional offer of employment. The only disability related question you may ask before hiring them 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 be sure that the applicants have been informed of what the essential functions of the position are through a detailed job posting, explanation during the interview, or 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 accept any further information about the applicant’s condition from your current employees. Any information collected from other sources prior to making an offer would be illegal.

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.

Should you have any additional questions regarding this or other employee topics, contact the professionals at CyQuest for help!