Can You Ask Potential Hires About Medical History?
Your business may wish to hire employees who are well suited to a physically demanding task. This may make you wonder if your applicants are healthy enough to perform these tasks -- so much so you would like to ask about their medical history.
Amsted Rail Co., Inc. and Amsted Industries, Inc. had similar concerns about its applicants having carpal tunnel syndrome, so it performed tests and asked about potential hires' history with carpal tunnel. Now the Equal Employment Opportunity Commission (EEOC) is suing Amsted for violating the ADA with its hiring practices.
Can employers ask potential hires about their medical histories?
Asking Medical Questions Before Making an Offer
The Americans With Disabilities Act (ADA) generally prohibits employers from asking about an applicant's medical history prior to making that person an offer. Same goes for any sort of physical exam or medical test. Along with the many things an employer should never ask during an interview, interviewers should avoid asking about recent injuries, hospital visits, or medical conditions.
Employers can ask an applicant questions about job-related capabilities and ability to perform specific tasks. For example, it would be in violation of the ADA to ask an applicant if he or she were diagnosed with a back or neck injury that prevents him or her from lifting heavy objects. But it may not be illegal to ask if an applicant was capable of lifting up to 50 pounds on a daily basis if the specific position requires it.
Post-Offer Conditional Tests
There is a way for employers to make a job offer conditional on the satisfactory result of a medical test or inquiry, so long as it is required of all entering employees in that category. However, according to the EEOC, if an employer chooses not to hire an employee because the tests reveal a disability or a perceived disability, that employer must:
- Have a job-related reason for not hiring that is based on a business necessity; and
- Show no reasonable accommodation was available; or
- Demonstrate the employee would pose a "direct threat" to health and safety in the workplace (not just a speculative threat).
As you can see, navigating the line between legal medical inquiries and illegal discrimination is a precarious task. Business owners shouldn't attempt it without first contacting an attorney.
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