Can an employer legally ask an applicant about current illnesses?

The following article appeared in the Chicago Tribune, Chicago, IL, April 9, 2006, and was distributed by the Great Lakes ADA Center.

Chicago Tribune (Chicago, IL)
April 9, 2006

BY CARRIE MASON-DRAFFEN
Columnist for Newsday, a Tribune Co. newspaper.

Q. Can an employer legally ask an applicant about current illnesses? And how much does the applicant have to reveal?

I ask because I had cancer. Since surgery more than a year ago, I have been cancer-free, but I am still in the five-year waiting period before the term "cured" applies to my condition.

I will be looking for a job soon, and I don't want to have to tell a prospective employer about my health. If I do wind up telling the interviewer I had cancer, can the person use the information to justify not hiring me?

A. Based on the scenario you describe, you don't have to tell the company you had cancer, said Lisa Sirkin, supervisory trial attorney in New York's Manhattan office of the U.S. Equal Employment Opportunity Commission, which enforces anti-discrimination laws in the workplace. "The Americans with Disabilities Act (ADA) prevents an employer from asking about the health conditions of a prospective employee," she said.

The guiding principle of the ADA is to force employers to focus on applicants' skills rather than on their disabilities. The ADA has narrow exceptions that allow employers to inquire about an applicant's health.

For example, Sirkin said, if a disability is apparent, an employer may legally ask how the applicant can fulfill the major functions of the job.

If the job is "time sensitive," and the individual says she has to be out during key times because of a disability, "that may be a legitimate reason for an employer to be unable to hire that particular person," Sirkin said.

Some examples of time-sensitive jobs include tax preparation or a high-tech position with a project deadline.

Once you're offered a job, the company can require you to take a medical exam, provided it is related to the job and requested of all individuals performing the same job, Sirkin said.

What happens if you face queries about your health in an interview and don't get the job? Experts say you might have grounds to file an unlawful discrimination complaint.

No discussion of disabilities in the workplace would be complete without a mention of "reasonable accommodations."

When an applicant or employee's health problem meets the criteria for a disability under the ADA, the employer may be required to provide a reasonable accommodation to allow the person to perform the job, Sirkin said. What constitutes "reasonable" depends on such factors as the cost of the accommodation, such as special equipment, and the size of company.

To be covered by the ADA, a disability must include a substantial impairment of a basic life function, such as walking, talking, or caring for oneself, Sirkin said.

For more information on disclosing a disability to an employer consult the Knowledge Base article, When is the best time to disclose a disability to a prospective employer?

For more information on legal protection in the workplace consult the Knowledge Base article, In what ways does the Americans with Disabilities Act protect job applicants?