QUESTION:
An applicant disclosed that they have a physical disability.  What can we do (or not do) in terms of asking follow-up questions about the applicant’s physical disability?

ANSWER FROM HORTYSPRINGER ATTORNEY MOISES A. TONOC BONILLA:
Assuming that the applicant is applying for employment as an employee, under the Americans with Disabilities Act (the “ADA”), an employer cannot ask disability‑related questions and may not conduct medical examinations until after the employer makes a conditional job offer to the applicant.  It is unlawful to ask an applicant whether they have a disability or about the nature or severity of a disability (i.e., a “disability-related question” that is likely to elicit information about a disability) or require an applicant to take a medical examination before making a job offer.

However, an employer may inquire into whether the applicant is qualified for the job.  In doing so, an employer may ask about an applicant’s ability to perform a specific job function or ask about the applicant’s non-medical qualifications and skills (e.g., education, work history, required certifications).  An employer may ask about an applicant’s ability to perform a specific function of the job the applicant has applied to, such as whether the applicant can lift a certain amount of weight (if lifting said certain amount of weight is relevant to the position).

Generally, an employer cannot ask questions on an application or during an interview whether an applicant may need a reasonable accommodation for a job, since the question on its own elicits information about the applicant’s disability.  However, if the applicant voluntarily discloses the existence of their disability or voluntarily discloses that they need a reasonable accommodation to perform the job, the employer may ask certain questions about the reasonable accommodation.  For example, an employer may ask whether the applicant will need a reasonable accommodation to perform the functions of the job, or what type(s) of accommodation(s) the applicant would need to perform the function of the job.  Importantly, the employer cannot ask about the applicant’s underlying condition and may not ask accommodation questions that are unrelated to the job’s functions.

Once a conditional offer is made, the employer may then ask disability-related questions and may require a medical examination if the inquiry or medical examination is done for all entering employees in that job category.

Even if the applicant is not seeking employment but rather applying for medical staff appointment as an independent practitioner, it is advisable to follow these rules some (but not all) courts have held that the ADA is applicable to medical staff appointment decisions.

If you have a quick question about this, e-mail Moises at mtonocbonilla@hortyspringer.com.