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Disability Related Questions during the Job Application ProcessMatthew H. Luttinger and Bruce E. Loren | Jun 21 2019

Employers often ask what questions are improper to ask during the job application process relating to disabilities or medical conditions. This article provides a short explanation of the Americans with Disabilities Act ("ADA") and how to approach an applicant’s disability during the application process.

Does the ADA apply to you?

The ADA applies to employers with 15 or more employees. The ADA makes it unlawful to discriminate in employment against an individual with a disability in all employment practices, including recruitment, pay, firing, promotion, job assignments, training, leave, lay-off, and benefits. A "disability" is: (a) a physical impairment that substantially limits one or more major life activities; or (b) a record of a physical or mental impairment that substantially limits one or more major life activities. If there is any doubt, employers should assume any medical condition to be a disability because the of the ADA’s broad and open-ended definition of a disability.

Reasonable Accommodations

The ADA mandates that employers provide reasonable accommodations to employees and applicants with disabilities so that employees and applicants can reap the benefits and privileges of employment of those of similarly situated employees and applicants without disabilities. An employer cannot refuse to consider an applicant because the applicant requires a reasonable accommodation to compete for or to perform a job. Reasonable accommodations to perform a job include modifying equipment, job restructuring, part-time or modified work schedules, leave, reassignment to a vacant position, adjusting training materials or policies, providing readers and interpreters, and making the workplace readily accessible to and usable by people with disabilities. Reasonable accommodations that may be needed during the hiring process include providing written materials in accessible formats such as large print or braille and ensuring that recruitment, interviews, tests, and other components of the application process are held in accessible locations.

It is not necessary to provide a reasonable accommodation however, if doing so would cause an undue hardship. Undue hardship means that the accommodation would be unduly costly, disruptive, or would fundamentally alter the nature or operation of the business. If the particular accommodation would be an undue hardship, you must try to identify another accommodation that will not pose such a hardship. If cost causes the undue hardship, you must also consider whether funding for an accommodation is available from an outside source, such as a vocational rehab agency, and if the cost can be offset by tax credits or deductions. You must also give the applicant or employee the opportunity to provide or pay for the portion of the accommodation that constitutes an undue hardship.

Although not an exhaustive list, here are some examples of proper and improper questions during the application/interview process. If you have any questions concerning best practices, do not hesitate to contact an attorney experienced in employment law and human resources.

Questions about an Applicant’s Disability


UnacceptableAcceptable

Do you have any disabilities?


Do you have any medical conditions?

How many days were you sick last year?

Are you currently taking prescription medicine?

Have you ever been addicted to illegal drugs or alcohol?

Are you in good health?

Can you perform the duties of the job for which you are applying? (If the answer is no then ask the applicant to describe how, with or without reasonable accommodation, the applicant will perform job related functions. This will help you determine whether a reasonable accommodation for the applicant is necessary, and if so, feasible)

Have you ever been disciplined for tardiness?

Are you currently using illegal drugs?

Matthew H. Luttinger and Bruce E. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law and employment law. Mr. Luttinger focuses his practice on labor and employment law, only representing the interests of employers and business owners. The firm represents businesses in a wide range of disputes, including OSHA investigations and citation contests, DOL investigations, discrimination claims, and state and federal wage litigation. Mr. Luttinger and Mr. Loren can be reached at mluttinger@lorenkeanlaw.com or bloren@lorenkeanlaw.com or 561-615-5701.