What Employers Must Know About Disabilities And The Job Interview

As an employer, choosing employees is one of your most important job functions. It is crucial to fully understand what you are not allowed to ask candidates when it comes to disabilities. The following is a guide to what you can and cannot ask a potential employee: 

What You Cannot Discuss With Job Applicants And Potential Employees

There are certain questions that you are not allowed to ask potential employees during a job interview regarding disabilities. You also cannot require a physical examination before a job offer. Specifically, you cannot ask the following questions:

  • Whether or not they will need any accommodations to perform the job.
  • If they have a medical issue that would prevent them from doing the job or limit their capabilities performing certain tasks.
  • If an applicant arrives with an obvious injury, you cannot ask them how long it will take to fully heal.
  • No questions regarding the medications they are currently taking.

If you are calling former employers or other references, you are also not allowed to ask them any of these questions. This includes their past FMLA leave, absences due to illness, or any other questions about disabilities.

What You Are Allowed To Ask During An Interview

You may ask whether or not the candidate is able to perform the job before an offer is made. In addition, you are allowed to ask the following:

  • If he or she can perform the tasks of the job with or without accommodations.
  • How they will perform certain tasks.
  • Whether or not they can meet their attendance requirements.
  • If the applicant uses illegal drugs

While you are not allowed to ask former employers about how much time a candidate took off, you are allowed to ask the applicant very specific questions about their missed time from work, such as how many Fridays did they miss other than scheduled time off or during holidays.

What To Do If The New Employee Does Not Disclose A Disability

Once you have hired the applicant and you notice that they have a disability that they failed to disclose, there are some things you can do. If it appears that an employee will need accommodations to perform the job, you may ask certain questions about what type of reasonable accommodations they would need in order to perform their job. You cannot ask any questions that are unrelated to the job functions or anything that relates to the employee's disability.

If you find out about an applicant's disability either at the interview stage or after hiring, do not immediately withdraw any offers you have given. You can very likely be opening the company up to a disability discrimination lawsuit. To learn more, contact someone like Bruce K Billman.