Can an Employer Ask if You Have a Disability?

Employers have an interest in knowing whether a prospective employee or current employee has the ability to perform the duties of a position. However, the federal Americans with Disabilities Act (“ADA”) provides protections to workers with disabilities to help prevent them from being treated differently because of their disability.

Asking About Disabilities Before Making an Offer

The ADA prohibits employers from making “pre-employment inquiries” about disabilities. This means employers may not require you to do a medical exam, and they may not ask an applicant if they have a disability. If you have a disability that is obvious, then the employer may not ask about the nature or severity of your disability. See 42 USC 12112(d)(2)(A).

An employer is allowed to ask about your ability to perform the functions related to the job. They can also ask you to describe or demonstrate how you would be able to perform job-related functions, with or without an accommodation. See 42 USC 12112(d)(2)(B); 29 CFR 1630.14(a). These permitted questions may require you to discuss any limitations you have in performing the functions of the position because of your disability, but you don’t have to disclose that you have a disability or the nature or severity of it, if you can show how you would perform the job.

Asking About Disabilities After Making an Offer

Once an employer has made you an offer, the employer may ask you to do a medical exam and may make its offer conditional based on the results of the exam; however, the employer must require all offered employees to do the exam and keep the information obtained from the exam confidential. See 42 USC 12112(d)(3).

If the employer screens out employees with disabilities based on the results of the exam, then the criteria that screen out people with disabilities must be “job-related and consistent with business necessity,” and there must not be a reasonable accommodation that would allow the employee to perform the essential functions of the job. 29 CFR 1630.14(b)(3).

Asking About Disabilities After You Begin Working

Once you begin performing your duties, an employer can always ask about your ability to perform the functions related to the position. However, an employer may still not ask whether you have a disability or require you to do another medical exam, unless the exam or inquiry is “job-related and consistent with business necessity.” 42 USC 12112(d)(4)(a). As always, the employer must keep any medical information confidential. See 29 CFR 1630.14(c).

Employers may conduct voluntary medical exams for the purposes of an employee health program designed to promote health or prevent disease, if it keeps the information confidential. See 42 USC 12112(d)(4)(b). Regulations define what “voluntary” means and whether the voluntary program is designed appropriately, and the regulations place limitations on such exams. See 29 CFR 1630.14(d).

Note that any person who is subject to an exam or inquiry that violates these guidelines may seek protection under the ADA, even if the person does not have a disability as defined by the ADA. See E.E.O.C. v. Grane Healthcare Co., 2 F. Supp. 3d 667, 679–80 (W.D. Pa. 2014).

Summary of Key Points

• An employer may not ask if you have a disability, or ask about the nature or severity of your disability, either during the application process or after you’ve received an offer or have begun working;
• Before an offer is made, an employer may ask about your ability to perform the functions related to the position;
• After making an offer, your employer may still ask about your ability to perform job-related functions, and it can require you to do a medical exam if it requires all employees to do the exam; it may not screen you out based on the exam unless the criteria are job-related and consistent with business necessity and the employer considers whether a reasonable accommodation would allow you to perform the duties of the position;
• After starting work, any medical exam must be job-related and consistent with business necessity;
• Employers must always keep your medical information confidential.

Although Nevada law does not provide these specific protections, the ADA applies throughout the U.S. and Nevada law does prohibit employers from failing to hire, refusing to hire, terminating, or otherwise discriminating against a person with a disability. See NRS 613.330(1).

If you’re concerned that your employer has violated these guidelines then feel free to contact us for a case evaluation.