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The Equal Employment Opportunity Commission (“EEOC”) recently issued revised enforcement guidelines which give employers increased leeway in asking applicants about reasonable accommodation of a known disability prior to making a job offer. The guidelines replace more restrictive interim guidelines issued by the EEOC in May 1994. These new guidelines should hopefully provide employers with a greater level of comfort in how they deal with applicants who voluntarily disclose or who have an observable disability.

The Pre-Offer Stage
Under the revised guidelines, when an employer reasonably believes that an applicant will need an accommodation to perform essential job functions, the employer may ask that applicant whether he or she needs an accommodation and what type of accommodation would be needed to perform the job functions. The employer, however, may not ask questions about the applicant’s underlying condition or questions that are unrelated to functions of the job. The guidelines identify three situations that may give rise to this limited reasonable accommodation inquiry at the pre-offer stage:

1. where the employer reasonably believes that the applicant will need a reasonable accommodation because of an obvious disability (e.g., the applicant is in a wheelchair);
2. where the employer reasonably believes that the applicant will need a reasonable accommodation because of a hidden disability that the applicant has voluntarily disclosed to the employer; or
3. where an applicant has voluntarily disclosed to the employer that he or she needs a reasonable accommodation to perform the job.

The revised guidelines also reaffirm an employer’s ability to ask questions necessary to evaluate whether an applicant is qualified for the job. For example:

1. an employer may state the physical requirements of the job, such as the ability to lift a certain weight or to climb ladders, and ask if the applicant can satisfy these requirements;
2. an employer may ask about the applicant’s education, work history, and required certifications or licenses; or
3. an employer may ask an applicant to describe or demonstrate how he or she would perform the job tasks, as long as the employer asks for all applicants in that job category;

The Post-Offer Stage
The revised guidelines also affirm the EEOC’s position that once a conditional job offer is made, the employer may ask disability-related questions or conduct medical examinations as long as it does so for all entering employees in that job category, regardless of disability. If the post-offer question or examination screens out an individual because of a disability, the employer must be prepared to demonstrate that the reason for the rejection is “job-related and consistent with business necessity.”