1. Know When to Hold Em’: Medical Inquiries and the ADA
Tracie DeFreitas, M.S.
JAN Lead Consultant, ADA Specialist

2. Discussion Topics
Limitations on Medical Inquiries and Examinations Under the ADA
Pre-Employment, Pre-Offer
Pre-Employment, Post-Offer
Employment
Disclosure Issues

3. ADA: Medical Inquiries & Exams
ADA places limitations on disability-related inquiries and medical examinations
Pre-employment (Stop)
Post-offer (Go)
Employee (Use Caution)
Non biased consideration of non- medical qualifications

4. Pre-Employment, Pre-Offer
Cards off the table… most restrictive
May not ask disability- related questions
Any question likely to elicit information about a disability or medical impairment
May not require medical examinations
No inquiries about disability:
On application forms
During job interview
In background or reference checks

5. Pre-Employment, Pre-Offer
May ask:
About ability to perform job duties (i.e., ability to lift a certain amount of weight, if job-related)
About non-medical qualifications and skills, education, experience, certifications, etc.
About ability to meet attendance requirements
About drinking habits…unless the particular question is likely to elicit information about alcoholism
About current and prior illegal drug use…provided the particular question is not likely to elicit information about past addiction

6. Pre-Employment, Pre-Offer
May not ask:
About disability, medical impairment…unless accommodation is requested for hiring and disability is not known or obvious
About lawful drug use…unless tests positive for illegal drug use and the results need to be validated
About ability to perform major life activities (i.e., standing, lifting, walking, etc.)…unless specifically about the ability to perform job functions
About workers’ compensation history
Previous employers or other sources about an applicant's disability, limitations, history, etc.

7. Pre-Employment & Disclosure
Are applicants required to disclose their medical impairment during hiring?
No, with limited exceptions
Generally employers may not require applicants to disclose information about disability or medical impairment prior to an offer of employment
However, may need to disclose when accommodation is necessary to:
complete an on-line application
participate in a job interview
take an employment test

8. RA for the Hiring Process
May employers ask if reasonable accommodation will be needed for the hiring process?
Yes. Employers may tell all applicants what the hiring process involves and ask whether reasonable accommodation will be needed for the process.
EEOC (1995), Pre-employment Disability-related Questions & Medical Examinations

9. Pre-Employment & Disclosure
When an accommodation is requested for the hiring process, employer may discuss RA request with candidate
Candidate may be expected to:
Respond to the employer's questions in a timely manner
Explain how the proposed accommodation will enable participation in the hiring process
Provide reasonable documentation of disability

10. Pre-Employment Documentation
May employers ask applicants for documentation of disability when RA is requested for the hiring process?
Yes. May request reasonable documentation about disability, if the need for accommodation is not known or obvious
Entitled to know applicant has a disability and needs accommodation to participate in the hiring process
Documentation may be provided by an appropriate professional (i.e., healthcare provider or a rehabilitation counselor) concerning the applicant's disability and functional limitations, but is not required
EEOC (1995), Pre-employment Disability-related Questions & Medical Examinations

11. Pre-Employment, Pre-Offer
May employers ask applicants if they will need accommodation to perform job functions?
Sometimes.
Must have reasonable belief that accommodation will be needed to perform job functions…
Because of an obvious disability
Because of a hidden disability the applicant has voluntarily disclosed
Because the applicant has voluntarily disclosed the need for accommodation
EEOC, Pre-employment Disability-Related Questions and Medical Examinations

12. Pre-Employment, Pre-Offer
May employers ask a particular applicant to describe or demonstrate how s/he would perform the job, if other applicants are not asked to do this?
Yes…but only if have reasonable belief that the applicant will not be able to perform job functions because of a known disability
A known disability is one that is:
Obvious
Voluntarily disclosed
EEOC, Pre-employment Disability-Related Questions and Medical Examinations

13. Voluntary Self-Identification of Disability
May employers ask applicants to voluntarily disclose disability status?
Yes, for affirmative action purposes
Rehabilitation Act Section 503 Voluntary Self-Identification of Disability Form

14. Voluntary Self-Identification of Disability
Disabilities include, but are not limited to:
Blindness • Autism • Bipolar disorder • Post-traumatic stress disorder • Deafness • Cerebral palsy • Major depression • Obsessive compulsive disorder • Cancer • HIV/AIDS • Multiple Sclerosis • Impairments requiring the use of a wheelchair • Diabetes • Epilepsy • Schizophrenia • Muscular dystrophy • Missing limbs or partially missing limbs • Intellectual disability
Please check one of the boxes below:
Yes, I have a disability (or previously had a disability)
No, I don’t have a disability
I don’t wish to answer

15. Pre-Employment Post-Offer

16. Pre-Employment, Post-Offer
Play your hand… least restrictive medical inquiry stage
Inquiries and exams do not have to be job- related
May make job offer contingent upon receipt of additional medical information
Some rules apply:
Must ask same inquiries/require exams of all applicants in same job category
Must maintain confidentiality of medical information
EEOC, Pre-employment Disability-Related Questions and Medical Examinations

17. Pre-Employment, Post-Offer
Qualification standards or selection criteria that screen out or tend to screen out an individual with a disability on the basis of disability must be job-related and consistent with business necessity.
Job-related: A legitimate measure or qualification for the specific job, not a general class of jobs
Consistent with business necessity: Must relate to the essential functions of the job
Must determine if the qualification standard or selection criterion can be met with accommodation

18. Post-Offer Examinations
Procedure or test that seeks information about an individual's physical or mental impairments or health
Can require during post-offer, if all others entering the job category are also examined
When is a test medical?
Administered by a health care professional
Interpreted by a health care professional
Is invasive
Measures physiological responses
Designed to reveal an impairment or physical or mental health

19. Post-Offer Examinations
Not Medical
Psychological examinations…unless medical
Vision tests…unless medical
Tests to determine illegal use of controlled substances
Physical agility tests
Medical
Alcohol tests
Physical examinations
Blood tests

20. Pre-Employment, Post-Offer
May employers ask specific individuals for additional medical information after obtaining basic medical information?
Yes, if the follow-up examinations or questions are medically related to the previously obtained medical information
EEOC, Pre-employment Disability-Related Questions and Medical Examinations

21. Medical Inquiries of Employees

22. Employees & Medical Inquiries
Play your cards right
Restricted once again in making medical inquiries/requiring examinations
Inquiries must be “job-related and consistent with business necessity”

23. Employees & Medical Inquiries
Inquiries/exams will be job-related and consistent with business necessity when employer has reasonable belief based on objective evidence that:
Performance of job functions will be impaired by a medical condition; or
Employee will pose a direct threat
After accommodation request, when disability and/or need for accommodation are not known or obvious
Disclosure will be necessary in order to receive accommodation

24. Employees & Medical Inquiries
Proceed with caution…What is known?
Are the impairment and limitations known and is the need for accommodation obvious?
Has the employee already provided sufficient medical information?
Was medical information disclosed in response to counseling for a performance/conduct issue?
Is there an apparent impact on performance of duties and did the employee imply the need for accommodation or assistance?

25. May I, Must I, Should I
May initiate the interactive process without being asked if the employer:
knows employee has a disability
knows, or has reason to know, employee is experiencing workplace problems because of the disability
And…
knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation

26. Another Way – Offer Support
“Is there anything we can do to support you in performing job duties or meeting performance requirements?”
No mention of disability or accommodation = no worrying about the ADA’s medical inquiry rules
Extend support
Opens the door to engage in the interactive process
Good management practice overall
JAN ENews, Mother May I? Must I? Should I?
JAN ENews, To Ask, or Not to Ask? – Knowing When to Request Medical Information

27. Sufficient Medical Information
Sufficient medical information should substantiate:
Existence of impairment and may include nature, severity, and duration
Activity or activities the impairment limits/restrictions
Impact on job performance
Why reasonable accommodation is needed
JAN’s Medical Inquiry in Response to an Accommodation Request
Questions to help determine whether an employee has a disability
Questions to help determine whether an accommodation is needed

28. Employees & Medical Inquiries
Is medical documentation required as part of the interactive process under the ADA?
No. There is no requirement to obtain documentation, but employer may
Employer may also simply discuss with the individual the nature of his/her disability and functional limitations
EEOC, Reasonable Accommodation & Undue Hardship Under the ADA

29. Employees & Medical Inquiries
Can it be required that documentation come from a medical doctor?
Can require from an appropriate health care or rehabilitation professional
Including:
Doctors
Physician Assistants
Nurses
Psychiatrists
Psychologists
Physical, occupational, speech therapists
Vocational rehabilitation specialists
Licensed mental health professionals, etc.
EEOC, Reasonable Accommodation & Undue Hardship Under the ADA

30. Employees & Medical Inquiries
If work-related modifications are made for employees without disabilities, like flexible scheduling or telework, can medical documentation be required from employees with disabilities who request the same adjustments?
Not to receive the same modifications or benefits as those without disabilities
Should not have to jump through unnecessary hoops

31. Employees & Medical Inquiries
May employers require employees to go to a health care professional of the employer's (rather than the employee's) choice when employees request a reasonable accommodation?
If the employee provides insufficient documentation
Should allow employee to correct insufficiency
Consult directly with healthcare provider
Employer must pay costs if require to see provider of their choosing

32. More information…
JAN’s Requests for Medical Documentation and the ADA at
JAN’s To Ask, or Not to Ask? – Knowing When to Request Medical Information at V14-I1.htm#2
JAN’s Disability Disclosure and Employment at
EEOC’s Preemployment Disability-Related Questions and Medical Examinations and the ADA at
EEOC’s Disability-Related Inquiries and Medical Examinations of Employees Under the ADA at

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