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Disability-Related Questions You Can and Cannot Ask

March 10, 2008

Examples of Permissible/Impermissible Disability-Related Questions You Can and Cannot Ask

Diabetes — An individual with diabetes applying for a receptionist position voluntarily discloses that she will need periodic breaks to take medication. The employer may ask the applicant questions about the reasonable accommodation such as how often she will need breaks, and how long the breaks must be. Of course, the employer may not ask any questions about the underlying physical condition.

Visual Impairment — An applicant with a severe visual impairment applies for a job involving computer work. The employer may ask whether he will need reasonable accommodation to perform the functions of the job. If the applicant answers “no,” the employer may not ask additional questions about reasonable accommodation (although, of course, the employer could ask the applicant to describe or demonstrate performance). If the applicant says that he will need accommodation, the employer may ask questions about the type of required accommodation such as, “What will you need?” If the applicant says he needs software that increases the size of text on the computer screen, the employer may ask questions such as, “Who makes that software?” “Do you need a particular brand?” or “Is that software compatible with our computers?” However, the employer may not ask questions about the applicant’s underlying condition. In addition, the employer may not ask reasonable accommodation questions that are unrelated to job functions such as, “Will you need reasonable accommodation to get to the cafeteria?”

Absentee Record — An employer may ask an applicant, “How many Mondays or Fridays were you absent last year on leave other than approved vacation leave?”

However, at the pre-offer stage, an employer 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.

Workers’ Compensation — An employer may not ask applicants about their workers’ compensation history. An employer may not ask applicants about job-related injuries or workers’ compensation history. These questions relate directly to the severity of an applicant’s impairments. Therefore, these questions are likely to elicit information about disability.

Physical Impairment — An employer may ask questions about an applicant’s impairments. If the particular question is not likely to elicit information about whether the applicant has a disability, it is permissible. It is important to remember that not all impairments will be disabilities; an impairment is a disability only if it substantially limits a major life activity. So, an employer may ask an applicant with a broken leg how she broke her leg. Since a broken leg normally is a temporary condition which does not rise to the level of a disability, this question is not likely to disclose whether the applicant has a disability. But, such questions as “Do you expect the leg to heal normally?” or “Do you break bones easily?” would be disability-related. Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”

Information courtesy of:
What Every Business Manager and HR Professional Should Know About Federal Labor and Employment Laws


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