To Ask or Not to Ask about an Employee’s Medical Condition

HR Advisor feature article | October 2008

While prohibiting employers from discriminating against people with disabilities, the federal Americans with Disabilities Act (ADA) also prohibits “covered” employers (with 15 or more employees) from asking applicants or current employees about any medical questions that might reveal the existence, nature, or severity of a disability.

In general, an employer may ask disability-related questions and require medical examinations of an applicant only after the applicant has been given a conditional job offer.  The Equal Employment Opportunity Commission (EEOC) provides guidance regarding these ADA provisions.

Pre-Offer Situation

A disability-related question means a question that is likely to elicit information about a disability. At the pre-offer state, an employer cannot ask disability-related questions.  For example, Applicant X with no known disability is at a job interview, and the applicant has not asked for any reasonable accommodation.  The employer may not ask: “Will you need reasonable accommodation to perform this job?”  If many possible answers to a question exist and only some of the answers may consist of disability-related information, however, then that particular question may not necessarily be disability-related.

Note: An employer should not make any inquires or requirements for the applicant to take a medical examination, which is a procedure or test seeking information about an individual’s physical / mental impairments or heath.

Post-Offer Situation

After presenting a job offer to an applicant, an employer may ask disability-related questions and conduct medical examinations.  For example, an employer may inquire about the person’s workers’ compensation history, previous sick leave usage, impairments, illnesses, diseases and general physical and mental health.  While disability-related questions and medical examinations at the post-offer state do not have to be job-related, certain procedures should be followed.  For example, any medical information gathered must be kept confidential and should be documented in a separate file folder.

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