Publications

Although an employer has a right to inquire during a job interview as to whether an individual can do a job, an employer cannot ask questions that are likely to elicit information about whether an applicant has a disability. Accordingly, seemingly innocent questions might very well be illegal under the Americans With Disabilities Act (“ADA”)

Q Can an employer ask a job applicant whether she requires an accommodation in order to perform the duties of a job?
A It depends. If an applicant with no known disability does not request any accommodation during an interview, the employer cannot ask her whether any sort of accommodation will be required in order to do the job. Under such circumstances, an employer can ask only whether the applicant can perform the essential functions of the job. However, if an employer reasonably believes that an applicant will need an accommodation, perhaps because of a visible disability that would clearly affect the applicant’s ability to do the job, the employer then can ask about what accommodations might be necessary without violating the ADA.

Q Do the rules prohibiting disability related questioning during a job interview change when the applicant is an ex-employee who the employer knows to have a disability?
A Yes. If an employer already is aware of an ex-employee’s disability and its ramifications, it can request that the applicant provide medical certification of her ability to work, much as it would for an employee returning from a medical leave. In addition, the employer can also ask the ex-employee’s treating physician to describe whatever accommodation may be necessary for her to do the job. These slightly different rules for ex-employees are designed to encourage the applicant and the employer to engage in an interactive discussion about reasonable accommodation that hopefully encourages employers to reemploy people with disabilities when those opportunities are presented.

Q Can an employer ask a job applicant about her drinking habits or illegal drug use? If so, what kinds of questions are permissible?
A Yes, unless the question is likely to elicit information about alcoholism or a past addiction to drugs, which are disabilities under the ADA. For example, an employer can ask whether the applicant drinks alcohol or whether she has been arrested for driving under the influence. These questions do not force the applicant to reveal whether she is an alcoholic. The employer cannot, however, ask the applicant how much alcohol she drinks, whether she has taken part in an alcohol rehabilitation program, or whether the applicant is an alcoholic.

Similarly, questions concerning an applicant’s illegal drug use can be lawful or unlawful under the ADA, depending on whether they tend to lead an applicant to reveal a past addiction to drugs. Accordingly, an employer can ask whether an applicant has ever used illegal drugs or when she last used illegal drugs because the answers to these questions will not necessarily reveal a past addiction. On the other hand, questions such as “Have you ever been addicted to illegal drugs?” or “How often did you use illegal drugs in the past?” are not permitted. Responses to such questions could reveal a past addiction and consequently, cause an employer’s bias concerning drug addiction to become a factor in the job selection process.