|
Free Human Resource Information
| ADA
Puts Limits on Job Hiring Questions |
by Geoffrey Glaser
The Americans With Disabilities Act has
significantly altered the employment process.
The law was passed in 1992 to protect the
nations 43 million disabled people from employment discrimination.
It covers all employers with 15 or more
employees. Among other things, this law prohibits employers from asking
applicants certain health-related questions, or requiring physicals before
making a job offer.
Therefore, standard interview questions of
the past designed to screen out applicants that would, among other things,
increase Workers' Compensation cost, are now illegal.
For example, you cannot ask any questions
related to an obvious, hidden or potential disability until a conditional
job offer has been extended. Furthermore, employers may not ask general
questions to elicit information about an undisclosed disability. Thus, the
old concerns of a bad back, epilepsy, etc., are no longer areas of
permissible inquiry in the pre-employment process.
Only after a conditional job offer has been
made, can you ask about a disability effecting ability to perform the job,
and only if the same job-related questions are asked of all applicants.
According to the Equal Employment
Opportunity Commission's final version of its "Americans With
Disabilities Act Enforcement Guidance: Pre-employment Disability Related
Questions and Medical Examinations," employers can ask:
- About an applicant's ability to perform
specific "essential functions" of the job.
- About qualifications and skills.
- For a description or demonstration of
how an applicant would perform specific job task and "essential
functions" of the job.
- What accommodations would be needed to
enable the applicant to do the job if there is an obvious disability, if
there is a hidden disability that the applicant has voluntarily
disclosed, or the applicant states an accommodation is needed.
- If attendance standards can be met.
The law protects qualified people with
disabilities from discrimination "in regard to job application
procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of
employment."
The definition of disability is rather
lengthy. For purposes of this brief overview, the basic rule can be
summarized into the following sentence: "An employer dealing with an
individual with a known disability, who is qualified for a job and capable
of performing its essential functions with or without reasonable
accommodation, cannot discriminate against that individual and must provide
reasonable accommodation unless undue hardship would result or a direct
threat is established."
As you can imagine, each of these words has
and will continue to be litigated. We cannot begin to cover all the
possibilities in this article. Suffice it to say, if an issue arises,
contact your consultant or lawyer. Going it alone on this issue can be very
costly.
Stereotypes about people with disabilities
may initially make it difficult for employers, supervisors, a even coworkers to accept the mandates of the ADA. However, notions are breaking
down as more people with disabilities join the workforce, and we all realize
how capable these employees actually are.
Nevertheless, there are minefields out
there for the employer uninformed about the ADA. Furthermore, the
interaction of the ADA with the Family and Medical Lea Act and Workers'
Compensation creating a number of battlefields for employers.
It is possible to be dealing with a
complaint under all three laws at the same time. Solutions to one issue can
be illegal under another.
It is, therefore, vitally important for
people in charge of interviewing and hiring to be very familiar with the
intricacies of the hiring process as its now required by the EEOC
regulations. Similarly, it is important for the person handling Workers'
Compensation to be aware of the ADA implications.
Consequently, employers must have
well-written policies, including, ADA language on applications and in
employee handbooks, legally (and politically) correct forms, job
descriptions including the "essential functions" and training for
supervisors that includes interviewing.
Geoffrey Glaser is an HR attorney and
generalist with 25 years of experience and is a Human Resource Store
associate. You can access him through our legal hotline, which is included
in our package of Outsourced Human Resource Services, by calling us at
708-645-2530 24 hours daily.
Register
now and receive one free call (or email) to our HR Hotline to discuss your
questions about this article. Registration also allows you to receive
our free monthly bulletins.
|
