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Pre-Employment Medical Examinations and Inquiries About DisabilitiesLaw-In-Brief: Employment #3
Under the Americans with Disabilities Act and Washington’s Law Against Discrimination, an employer cannot ask you disability-related questions, or require you to take medical examinations, unless you are offered employment first. Once a job has been offered to you, an employer can only request medical examinations if those same exams are required of ALL other employees entering the type of position offered. What are disability-related questions? Disability-related questions are questions someone asks to find out whether you have a disability, what kind of disability you have, and what the effects of your disability are. For example, questions about your use of prescription medications, your genetic information, or your worker’s compensation history may be disability-related questions because the answers you give would tell someone whether you have a disability, and something about that disability. But, questions about your general well-being (e.g., “How do you feel today” or “Do you have a cold”), about current illegal drug use (e.g., “Do you smoke Marijuana?”), and about when a baby is due are not disability-related questions. In addition, questions about how a job applicant would perform the duties of a job are not disability-related questions (e.g., “Can you show me (or tell me) how you would perform _______ task?”). Thus, the question, “Can you type 60 words a minute?” is not disability-related. What types of examinations are considered medical examinations? Generally speaking, tests for vision and strength, as well as blood tests are examples of common medical examinations. But, a medical examination can take on many forms. A medical examination could also be a test: (1) given in a medical setting; (2) given by a health care professional; (3) interpreted by a health care professional; or (4) designed to reveal an impairment or physical or mental health issue. What about drug testing? Are drug tests considered medical examinations? No. Tests for current use of illegal drugs are not considered to be medical examinations. Last month, I went to a job interview and the employer asked me if I have a disability. Is that legal? No. An employer cannot require you to take a medical examination or ask you disability-related questions before offering you a job. However, an employer can make a job offer conditional on the completion of a medical examination if the employer requires all employees hired for the same position to have the same medical examination, and the information is kept confidential and separate from the regular employee files. Once an employee has been hired, the employer can ask disability-related questions and require medical examinations only if the exams and questions are “job-related” and consistent with “business necessity.” What counts as “job related and consistent with business necessity”? Whether questions or examination are job-related depends on the particular job tasks and the job environment. Generally, examinations and questions will be considered job-related if:
When you request a reasonable accommodation, an employer may ask questions or require examinations to verify that you have a disability as defined by the ADA (or state or local laws). Also, if your job performance is suffering and your employer can guess that your performance problems may be due to a medical condition, the employer can also ask disability-related questions and can request that you take medical examinations. Does this mean I can’t tell an employer that I have a disability when I apply for a job? No. The ADA does not prohibit people with disabilities from talking with employers about their disabilities. Where can I find more information on employment and the ADA? You can call or write the following organizations for more information:
Northwest ADA/IT Center Child Development and Rehabilitation Center P.O. Box 574 Portland, OR 97207-0574 (800) 949-4232 U.S. Equal Employment Opportunity Commission 909 First Avenue, Suite 400 Seattle, WA 98104 1-800-669-EEOC www.eeoc.gov Washington State Human Rights Commission:Seattle Office: 1-800-605-7324 (voice) or 206-587-5168 (TTY) Olympia Office: P.O. Box 42490 711 S. Capitol Way, Suite 402 Olympia, WA 98504 (360) 753-6770 1-800-233-3247 (voice) or 1-800-300-7525 (TTY) Spokane Office: Great Western Building W. 905 Riverside Ave., Ste. 416 Spokane, WA 99201-1099 509-456-4473 Yakima Office: 32 N. 3rd Ste., 422 Yakima, WA 98901-273 1-800-662-2755US Department of Justice Civil Rights Division P.O. Box 66118 Washington, DC 20035 (202) 514-0301 www.usdoj.gov/crt/ada
To receive this document in an alternative format, such as large print or Braille, please call Washington Protection & Advocacy System (WPAS) at 1-800-562-2702.
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