Employers may be exposed to liability under the Americans With Disability Act (“ADA”) for failing to hire job applicants because of medical conditions that have no effect on job performance.  Most employers now realize the ADA was designed in part to prevent employers from firing employees due to disabilities. You have a disability under the ADA if you have a physical or mental impairment that substantially limits a major life activity such as hearing, seeing, speaking, walking, performing manual tasks, or breathing. The Federal Law has specific guidelines designed to help employers in the interviewing process.

The guidelines discuss the pre-offer and post-offer phases of the employment interview process. In the pre-offer phase, the employer may ask the prospective employee about his or her employment attendance record, qualifications, skills, education and whether they are able to perform the job with or without reasonable accommodations.  When applying, an employer may not ask the prospective employee if he or she is disabled or inquire as to the nature of the disability. An employee applicant may be asked to describe or demonstrate how he or she would be able to perform the duties of the job, whether with or without reasonable accommodations. Before a job offer is made, the employer may not require a prospective employee to take a medical examination.

Once a job has been offered, an employer may condition the offer on passing a medical examination. These exams are allowed so long as all employees entering the specific job category are required to pass the same tests.  If an employer withdraws the conditional job offer after a medical exam, the employer must establish that the reason for withdraw is job related and necessary for the conduct of the employer’s business.  An example of business necessity would include an applicant rejected for safety reasons whereby the employer determines the individual poses a “direct threat” to the safety or health of himself or others and the risk of injury cannot be reduced or overcome by reasonable accommodations.  An employer may not refuse to hire a prospective employee due to a disability if the applicant can perform the essential tasks of the job with a reasonable accommodation.

One of the goals of the Federal ADA is to allow people with obvious and hidden disabilities an equal chance of obtaining a job.

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