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Employment Process Employment Process

Pre-Employment Screening Considerations and the ADA

 
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How Does the ADA Impact the Way in Which I Recruit Employees?

The Americans with Disabilities Act (ADA) is a federal statute that requires em­ployers to focus on the ABILITIES of applicants rather than on their DISABILI­TIES. Title I of the ADA protects individuals who have a disability, who have a record of disability or who are regarded as having a disability (whether they do or not) from discrimination in employment on the basis of disability. This includes the requirement that employers provide reasonable accommodation to qualified employees or applicants for employment except when the accommoda­tion would cause an undue hardship. The ADA also prohibits discrimination against individuals who have a relationship or association with a person with a known disability.

The ADA applies to all aspects of the employ­ment relationship, including the recruitment and selection process. You should be aware of the ADA’s impact on each of the following areas:

  • Advertising
  • Applications
  • Job Descriptions
  • Interviews
  • Testing
  • Medical Exams

How Can I Make Sure That Persons with Disabilities Know About the Job and Can Apply?

The recruitment process begins with letting people know that a job is available. There are a number of ways in which employers can ensure that the advertising and application processes are accessible to people with dis­abilities.

Job information should be posted or adver­tised in locations that are accessible to persons with mobility disabilities. Similarly, large print on job notices posted at work sites or in employment offices may help a person with a visual disability to become aware of the job. A job advertisement should include a TTY (tele­communications device for the deaf) phone number (whether or not an address is also given). Although the ADA does not require an employer to initially provide all applicants with written information in a variety of acces­sible formats, an employer should make such formats available upon request.

If the advertisement indicates that the ap­plicant should apply in person, employers should make sure that there is access for those with mobility disabilities, such as accessible parking spaces and ramps, and elevators if the interviews are not held on the first floor. In addition, any table, desk, or computer provid­ed to applicants for the purpose of completing an application should also be accessible.

While the ADA does not require employers to affirmatively target individuals with disabili­ties, many employers choose to inform state agencies or private organizations that work with persons with disabilities about available job openings because it helps their company find qualified new employees.

How Do I Know If an Applicant Needs a Reasonable Accommodation for the Application and Hiring Process?

An employer may include information in the advertisement or on the application form inviting applicants with disabilities to notify them of any reasonable accommodations that they need for the application process. Indi­viduals with certain disabilities may need assistance filling out a paper application or completing a computerized application that requires typing or information be read off the screen. An employer also may tell applicants what the hiring process involves (for example, interview, timed written test, or job demon­stration) and may ask applicants whether they will need a reasonable accommodation for this process. If the disability is not obvious, the employer may require the applicant to provide reasonable documentation from an appropri­ate professional showing that the individual has a covered disability and needs an accom­modation.

What Questions Can I Ask on the Job Application?

The purpose of a job application is to gather information on the skills, abilities, training, credentials, and references of the applicant and questions relating to any of these areas are permissible under the ADA. An employer may ask whether applicants can perform any or all job functions. If a disability is obvious or if the applicant indicates that s/he may be unable to perform a specific job function, the employer may ask whether the applicants can perform the job functions “with or without reasonable accommodation.” An employer also may ask applicants whether they can meet the attendance requirements.

A job application should not contain disabil­ity–related questions that are likely to elicit information about a disability, including inqui­ries about prior or current illnesses, medication, medical treatment, disabilities, injuries, or workers’ compensation claims. An applica­tion also should not ask whether an individual needs a reasonable accommodation to perform the functions of the job since the question by itself is likely to elicit information about dis­ability.

Will I Have to Change My Job Descriptions?

Under the ADA, a person is considered a qualified individual with a disability if s/he meets all the educational and experience requirements for the position and can perform the essential functions of the job with or with­out reasonable accommodation. Although the ADA does not require an employer to have job descriptions, they can be used as evidence of the essential functions of the job. Be sure that your job descriptions are up-to-date and that they differentiate between the essential and the marginal job duties. Marginal functions are those that are not absolutely necessary for the job, although they might be convenient for the employer.

How Should I Interview Job Applicants?

The purpose of the interview is to meet the applicant and learn more about his/her educa­tion, credentials, skills, and work experience in order to determine whether s/he can do the job. Questions about whether an applicant is an individual with a disability, or as to the nature or severity of such disability, are pro­hibited.

A good approach is to describe the job in detail so that the applicant has a reasonable under­standing of what is expected, and then ask the applicant whether s/he can perform the job with or without reasonable accommoda­tion. An employer can also ask applicants to describe or demonstrate how, with or without reasonable accommodation, they will be able to perform any or all job functions, as long as all applicants in the job category are asked to do the same.

Any necessary reasonable accommodations requested by the individual for the interview (for example, an accessible location for a per­son with a mobility disability or a sign lan­guage interpreter for a deaf applicant) should be provided unless it would impose an undue hardship on the employer’s business.

If an Applicant has an Obvious Disability, Can I Mention It?

If an employer could reasonably believe that an applicant will not be able to perform an essential job function because of either an obvious disability or a hidden disability that the applicant has voluntarily disclosed, the employer may ask the applicant to describe or demonstrate how s/he would perform that function. Similarly, if the employer reason­ably believes that the applicant will need an accommodation, because of either an obvi­ous disability or voluntary disclosures by the applicant, it may ask whether s/he needs an accommodation and, if so, ask about the type of accommodation required.

Does the ADA Prohibit Job Testing?

No. The ADA only prohibits employment tests that screen out individuals on the basis of disability, when it cannot be shown that the test is job-related for the position in question and consistent with business necessity. The ADA’s goal is to make sure that individuals with disabilities are not excluded from jobs that they can do. The ADA thus requires a close fit between selection criteria, including job tests, and the applicant’s (or employee’s) ability to do the job.

Tests that measure aptitude, skills, physical fitness, the ability to do actual or simulated job tasks, and any other non-medical factors can be given to applicants at any time during the pre-employment process since such tests are not considered to be “medical examinations” under the ADA. Tests must be designed to evaluate performance of the job’s essential functions and be accurate predictors of suc­cessful job performance. In addition, a job test relating to an essential function cannot be used to exclude an individual with disability if s/he can pass the test with a reasonable accommo­dation.

How Does Reasonable Accommodation Apply to Job Testing?

The ADA protects people with disabilities from being excluded from jobs that they actu­ally can do because a disability prevents them from taking a test or negatively influences the results. As in other areas of the employment process, applicants with disabilities are en­titled to reasonable accommodation in the test­ing process. The ADA also requires that tests be given to people who have impaired sen­sory, speaking or manual skills (including the abilities to see, hear, and process information) in a manner that does not require the use of the impaired skill, unless the test is designed to measure that skill.

For example, a person with dyslexia should be given an opportunity to take a test orally unless reading is the skill being tested. Pro­viding extra time to complete a test may be a reasonable accommodation as long as speed is not the skill being tested. If the applicant has mobility impairment the employer should ensure that the testing site is accessible. As always, the employer need not provide an accommodation that will impose an undue hardship.

It is a good idea to inform applicants in ad­vance about tests that will be administered so that they have an opportunity to request any needed accommodations ahead of time. Oc­casionally, an individual may not realize that s/he will need an accommodation until the test is given. For example, a person with a visual impairment who can usually read printed material finds that she cannot read the test because of an unusually low color contrast between the ink and the paper. In this situa­tion, the employer could provide the test in a higher contrast format at that time, reschedule the test, or make any other effective accommo­dation that would not impose an undue hard­ship.

Are There Special Rules for Medical Examinations?

Yes. Medical examinations or disability-relat­ed questions such as a medical questionnaire are prohibited until after you have made a conditional job offer to the applicant. A medi­cal exam is defined as a procedure or test that seeks information about an individual’s physi­cal or mental impairments or health.

Employment can be conditioned on the results of post-offer medical exams or disability-relat­ed questions. If medical exams or disability-related questions are required, they must be required of all entering employees in the same job category. You cannot require exams or make inquiries of some applicants but not oth­ers.

Can I Disclose Information from a Medical Examination?

All information obtained from post-offer medical examinations and inquiries must be collected and maintained on separate forms, in separate medical files and must be treated as a confidential medical record. Medical infor­mation must not be placed in an individual’s personnel file.

The employer should take steps to guarantee the security of the employee’s medical infor­mation, including:

  • keeping the information in a medical file in a separate, locked cabinet, apart from the location of personnel files; and
  • designating a specific person or persons to have access to the medical file.

Can I Share the Medical Information with Anyone?

An employer must keep medical information on applicants or employees confidential, with the following limited exceptions:

  • supervisors and managers may be told about necessary job restrictions and ac­commodations;
  • first aid and safety personnel may be told if the disability might require emergency treatment;
  • government officials investigating the ADA must be given relevant information on request;
  • employers may give information to state workers’ compensation offices, state sec­ond injury funds or workers’ compensa­tion insurance carriers in accordance with state workers’ compensation laws; and
  • employers may use the information for insurance purposes.

Medical information may be given to and used by decision-makers involved in the hiring process so that they can make employment decisions consistent with the ADA. In addi­tion, the employer can use the information to determine reasonable accommodations for the individual.

What About Safety Concerns?

The ADA does not compel an employer to hire a person who would be a direct threat to the health and safety of others at the work site. Before you decide not to hire someone because you think s/he poses a direct threat, you must first determine that the individual poses a significant risk (i.e., a high probability) of substantial harm to the health and safety of others that cannot be reduced or eliminated by reasonable accommodation.

This determination must be based on an in­dividualized assessment of the individual’s present ability to safely perform the essential functions of the job. The specific risk posed by the individual should be identified. The determination of whether an individual poses a direct threat should be based on the follow­ing factors:

  1. the duration of the risk;
  2. the nature and severity of the potential harm;
  3. the likelihood that the potential harm will occur; and
  4. the imminence of the potential harm.

Your assessment of a direct threat to health or safety must be based upon a reasonable judg­ment that relies on the most current medical knowledge and/or on the best objective evi­dence.

What About Safety Concerns?

The ADA does not compel an employer to hire a person who would be a direct threat to the health and safety of others at the work site. Before you decide not to hire someone because you think s/he poses a direct threat, you must first determine that the individual poses a significant risk (i.e., a high probability) of substantial harm to the health and safety of others that cannot be reduced or eliminated by reasonable accommodation.

This determination must be based on an in­dividualized assessment of the individual’s present ability to safely perform the essential functions of the job. The specific risk posed by the individual should be identified. The determination of whether an individual poses a direct threat should be based on the follow­ing factors:

  1. the duration of the risk;
  2. the nature and severity of the potential harm;
  3. the likelihood that the potential harm will occur; and
  4. the imminence of the potential harm.

Your assessment of a direct threat to health or safety must be based upon a reasonable judg­ment that relies on the most current medical knowledge and/or on the best objective evi­dence.

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