Preparing yourself and your senior staff for interviewing potential staff? Here are some highlights from the latest EEOC guidelines concerning legal interview questions related to disabilities. The ADA makes it unlawful to ask about the existence, nature, or severity of a disability until AFTER the employer makes a conditional offer of employment to the applicant. This is done to ensure that one’s hidden disability is not considered prior to assessing the applicant’s qualifications for the job.

Prior to the time you make an offer of employment, you may only ask about an applicant’s ability to perform specific job-related functions.

The Pre-Offer Stage

Before you offer someone a job, it is unlawful to ask questions that are likely to elicit information about a disability.

May an employer ask whetheran applicant can perform the job?
Yes. An employer may ask whether applicants can perform any or all job functions, including whether applicants can perform job functions “with or without reasonable accommodation.”

May an employer ask applicants to describe or demonstrate how they would perform the job (including any needed reasonable accommodation)?
Yes. An employer may ask applicants to describe how they would perform any or all job functions, as long as all applicants in the job category are asked to do this. Employers should remember that, if an applicant says that he/she will need a reasonable accommodation to do a job demonstration, you must either provide the reasonable accommodation or allow the applicant to simply describe how he/she would perform the task.

May an employer ask a particular applicant to describe or demonstrate how he/she would perform the job, if other applicants are not askedto do this?
Yes . . . assuming that either the person revealed to you the nature of his/her disability or the disability is obvious. It is not permissible to ask, “Do you have a disability?”

May an employer ask applicants whether they will need reasonable accommodation to perform the functions of the job?
In general, no. It is permissible to ask them to demonstrate the ability to perform the functions. It is not permissible to ask a general question about the need for accommodation to perform the job. Such a question would be likely to elicit whether the person has a disability.

If however, the disability is obvious, or the person has voluntarily disclosed the disability or the need for accommodation, you may ask what type of reasonable accommodation would be needed to perform the functions of the job. You may not ask about the nature of the disability.

For example, an applicant with diabetes may apply and voluntarily disclose that he/she will need periodic breaks to take medication or to eat snacks. You may ask questions about the reasonable accommodation — such as how often he/she will need breaks and how long they must be. But you may not ask questions about the underlying condition.

May an employer ask whether an applicant can meet the employer’s attendance requirements?
Yes. You may state attendance requirements and ask whether an applicant can meet them. You may ask about an applicant’s prior attendance record (how many days he/she was absent from the last job).

However, you may not ask how many days an applicant was sick, because these questions relate directly to the severity of an individual’s impairments. Therefore, these questions are likely to elicit information about a disability.

May an employer ask applicants about their worker’s compensation history?
No. You may not ask about job-related injuries or worker’s compensation history. These questions relate directly to the severity of an applicant’s impairments.

May I ask about the applicant’s current illegal use of drugs?
Yes. Illegal drug use is not protected under the ADA.

May I ask applicants about their lawful drug use?
No, if the question is likely to elicit information about a disability. Questions like, “What medications do you take?” or “Have you ever taken AZT?” certainly relate to a person’s disability.

May an employer ask applicants about their lawful drug use ifthe employer is administering a test for illegal use of drugs?
Yes, if an applicant tests positive for illegal drug use. In that case, the employer may validate the test results by asking about lawful drug use or possible explanations for the positive result other than the illegal use of drugs.

May an employer ask applicants about their prior illegal drug use?
Yes, provided the particular question is not likely to elicit information about a disability. Past addiction to legal drugs or controlled substances is a covered disability under the ADA, but past casual use is not a covered disability.

You MAY ask:

• Have you ever used illegal drugs?
• When is the last time you used illegal drugs?
• Have you used illegal drugs in the last six months?

But, you MAY NOT ask questions such as:

• How often did you use illegal drugs in the past?
• Have you ever been addicted to drugs?
• Have you ever been treated for drug addiction?
• Have you ever been treated for drug abuse?

May an employer ask applicants about their drinking habits?
Yes, unless a particular question is likely to elicit information about alcoholism, which is a disability. You may ask whether he/she drinks alcohol or whether he/she has been convicted of drunk driving, because these questions do not reveal whether someone has alcoholism. But, asking how much one drinks or whether he/she has participated in an alcohol rehabilitation program is likely to elicit information about alcoholism.

May an employer ask a third party questions that he/she could not ask the applicant directly?
No.

The Post-Offer Stage

After making a job offer to an applicant and before he/she starts working for the employer, an employer may ask disability-related questions and perform medical examinations. The job offer may be conditioned on the results of the post-offer disability-related questions or examinations.

At the post-offer stage, an employer may ask about an individual’s worker’s compensation history, prior sick leave usage, illness/diseases/impairments, and general physical and mental health. Such questions do not have to be related to the job.

It is recommended that all camps, especially resident camps, have a statement in writing that says that because camps serve as the first line of defense for medical treatment for camp staff, it is important that camp health staff have the critical medical information to determine whether a doctor or additional professional medical care is required. Without the appropriate information, camp health staff cannot make an informed decision. ACA accredited camps are required by ACA Standards to gather staff medical information — after hiring and before staff begin work.

If questions are asked or examinations are given, the following procedures must be met:

• all entering employees in the same job category must be subjected to the examination/inquiry, regardless of disability; and
• medical information obtained must be kept confidential.

Confidentiality of medical records and information should be maintained within the following guidelines:

• supervisors or managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;
• first aid and safety personnel may be told that the disability might require emergency treatment;
• government officials investigating compliance with ADA must be given relevant information on request;
• information may be given to insurance or worker’s compensation offices per state law; and
• confidentiality extends to medical information the employee shares voluntarily with the employer.

Medical records of staff are to be maintained separate from employment records or personnel files. Confidentiality guidelines remain intact even after the person leaves your employ.

If you have questions, contact your local legal counsel as requirements are subject to state law.

Information condensed from EEOC Preemployment Guidelines Under the ADA (October 10, 1995); and based on guidance provided by ACA’s legal counsel, Ice Miller, Indianapolis, Indiana.

Originally published in the 2003 Winter issue of The CampLine.