The Equal Employment Opportunity Commission (EEOC) issued an Enforcement Guidance designed to provide clarification of an emp1oyer liability to make preemployment disability-related inquiries and conduct medical examinations. The Enforcement Guidance is specifically provided to clarify the issue of inquiries at the application and interview stage. While the guidance does not offer employers a definition of permissible and impermissible questions, it does contain examples illustrating the distinction between disability-related and job-related inquiries.
You Can Ask
- Can you perform the functions of this job (essential and/or marginal), with or without reasonable accommodation ? How you would perform these functions (essential and/or marginal)?
- Do you have a cold? Have you ever tried Tylenol for a fever? How did you break your leg?
- Can you meet the attendance requirements of this job? How many days did you take leave last
year? How many days were you absent from work last year? Did you have any unauthorized absences
from your job last year? How many Mondays or Fridays were you absent last year on leave other than
approved vacation leave? - Do you illegally use drugs? Have you used illegal drugs in the last two years? (While these questions are stated to be permissible in the Enforcement Guidance, caution should be exercised to prevent discrimination on the basis of or an erroneous perception of drug abuse or a history of drug abuse for which rehabilitation has been completed or is in progress)
- (If an applicant tests positive for use of controlled substances) What medications have you taken that may have resulted in a positive drug test result for this controlled substance? Are you taking this medication pursuant to a lawful prescription?
- Do you have the required licenses to perform this job?
- Do you have 20/20 corrected vision?
- How well can you handle stress? Do you work better or worse under pressure?
- “Life-style“ questions such as questions about eating habits, weight, height, and exercise habits are generally permitted if not likely to elicit information about the existence, nature or severity of a disability
You Cannot Ask
Do you have a disability that would interfere with your ability to perform the job ? Do you have a disability that would prevent you from performing the essential functions of the job with or without reasonable accommodation?
- Do you have AIDS ? Do you have asthma ?
- How many days were you sick last year? How many separate episodes of sickness did you have last year ? How often will you require leave for treatment of your disability ?
- How much alcohol do you drink each week ? Have you ever been treated for alcohol problems ?
Are you an alcoholic ? How often have you used illegal drugs in the past? Have you ever been treated for drug abuse/drug addiction ? - Have you ever been treated for mental health problems ?
- What prescription drugs/medications are your currently taking ?
- What is your corrected vision ? What is your unaffected vision ?
- Have you sought treatment for your inability to handle stress ? Do you ever get ill from stress ? Does stress affect your ability to be productive ? Have you ever been unable to cope with work-related stress?
- (If an applicant voluntarily discloses a disability) How debilitating is your disability ? Does it limit your ability to work? Do you expect your condition to get worse ?
- Do you have job-related injuries ? What is your workers‘ compensation history ? Have you ever filed for workers‘ compensation ?
- Broad questions about a person‘s ability to per form major life activities arc generally forbidden (e.g., Can you stand ? Can you walk ?).
- Restrictions on preemployment disability-related questions and medical examinations.
