Roofing contractors seeking to hire good workers often inquire whether it is permissible to ask applicants about their abilities to physically perform essential job functions associated with roofing work. The concern is that asking these types of questions may disclose an applicant has a disability. Roofing contractors want to avoid a discrimination claim involving an applicant who is not hired for an available position and then alleges he or she was discriminated against because of a disability disclosed during the interview process.
The law also is sensitive to this concern, so it is important to know which questions are appropriate and when you can ask them.
Pre-offer stage
Under the Americans with Disabilities Act (ADA), an employer may ask disability-related questions and require an applicant to undergo medical examinations only after the employer has given the applicant a conditional job offer. A "disability-related question" is a question likely to elicit information about a disability. When conducting an interview—and before a job offer is made—employers may not ask job applicants about a disability's existence, nature or severity.
For example, you cannot ask applicants about their workers' compensation histories because such questions relate directly to the severity of an applicant's impairments and are likely to elicit information about a disability.
However, you are allowed to ask applicants about their abilities to perform the specific job functions for the position being filled.
For example, though it is illegal for you to ask whether a candidate has a medical condition, you can inquire whether he or she is able to lift a specific amount of weight and carry it a certain distance provided lifting and carrying are primary functions of the available job.
Before making a conditional job offer, you also are permitted to ask applicants to describe or demonstrate how they would perform the job's essential functions. Additionally, applicants can be subjected to a physical agility or fitness test as long as all applicants for the job are asked to take the test.
An exception to this rule applies when an applicant's disability is obvious, such as if an individual is using a wheelchair, is blind or is an amputee; then, if it is reasonable to question whether the disability might pose difficulties for the applicant when performing a specific job task, you may ask the applicant to describe or demonstrate how he or she would perform the job functions and whether the applicant would need a reasonable accommodation to perform that task—even if the demonstration is not required of job applicants who do not have obvious disabilities.
Reasonable accommodations are adjustments or modifications, such as making the physical work environment accessible; restructuring a job; providing assistive equipment; providing certain types of personal assistants (for example, a reader for a blind individual or an interpreter for a deaf individual); transferring an employee to a different job or location; or providing flexible scheduling. Reasonable accommodations are tools employers provide to enable employees with disabilities to do their jobs, just as employers provide the means for all employees to accomplish their jobs.
You must be sure any required job demonstration or physical agility or fitness test does not become an impermissible, pre-offer medical examination. A physical agility or fitness test demonstrates the ability to perform actual or simulated job tasks. A procedure or test becomes "medical" when a health care professional administers the test or examination or interprets the results; the test is designed to reveal a physical or mental health impairment; the employer is trying to determine the applicant's physical or mental health impairments; or the test is invasive (requires drawing blood or testing urine or breath).
If applicants request a reasonable accommodation for any required job demonstration or physical agility or fitness test, you are obligated to provide the reasonable accommodation as long as it does not impose an undue hardship on your company.
For example, if an applicant asks for a back brace before being subjected to a physical agility or fitness test that involves lifting heavy roofing materials, you will be required to provide that reasonable accommodation for the individual to take the physical examination.
Alternatively, when an applicant requests a reasonable accommodation to perform a demonstration, you instead can allow the applicant to describe how he or she would perform the job function rather than have the applicant engage in the job demonstration.
Before a job offer is extended, you also are permitted to ask applicants about current illegal drug use, which is not protected under the ADA; in other words, applicants currently using illegal drugs are not considered disabled under the ADA. It certainly is permissible to reject an applicant based on current illegal drug use.
Consequently, the ADA does not protect applicants when they are asked questions about current illegal drug use during an interview. However, you must be careful to limit any questioning regarding illegal drug use to current use of illegal drugs; past drug addiction may qualify as a disability under the ADA. As such, any questions about past drug addiction asked before extending a conditional job offer to an applicant may be deemed impermissible disability-related questions.
Before extending a conditional job offer, you also can ask applicants whether they will be able to comply with the job's attendance requirements. However, you again are advised to pose your questions carefully so you don't elicit information about a disability.
You may not put much faith in an applicant's response to interview questions, and you can seek to subject applicants to a medical examination to determine whether the individual can perform the job's essential functions. However, it is illegal for you to require applicants to undergo a medical examination before a conditional job offer has been extended.
Post-offer stage
Once you make a conditional job offer to an applicant, the ADA permits you to inquire about disabilities and conduct a medical examination provided all employees entering the same job category are subjected to the same inquiries and examinations, regardless of disabilities. Permissible inquiries at the post-offer stage include asking applicants about their previous work-related injuries, workers' compensation histories, previous sick leave use, illnesses or diseases, and general health. Medical examinations can include asking any medical questions the medical provider deems appropriate to ask during the examination.
If you use information obtained from a post-offer disability-related inquiry or medical examination to disqualify a candidate, you must be certain the information is job-related and consistent with business necessity or the information indicates the employee would be a direct threat to the health or safety of the employee or others. Otherwise, rejecting a candidate based on information obtained from a medical inquiry or examination violates the ADA. Similarly, if using a particular medical examination tends to screen out individuals with disabilities, the examination may not be used unless you can show it is job-related and consistent with business necessity.
One of the more common post-offer medical examinations roofing contractors conduct is a post-offer drug test. A job offer conditioned upon successfully completing a drug test is within the bounds of the law. Certainly, in the roofing industry, withdrawing an employment offer based on a positive drug test is job-related and consistent with business necessity.
If you require medical examinations after extending a conditional job offer, you also must be aware of the Genetic Information Nondiscrimination Act (GINA) of 2008. GINA prohibits employers from discriminating against employees and job applicants based on genetic information and restricts acquisition and disclosure of genetic information. With few exceptions, it is a violation under GINA to acquire genetic information from employees, even when you inadvertently acquire the information—such as during a medical examination.
To avoid an inadvertent violation under GINA, federal regulations provide specific language for you to use in medical inquiry forms. The specific language provides a "safe harbor" where liability is avoided if protected genetic information is disclosed in response to a medical inquiry or examination.
Existing employees
Existing employees with disabilities present a different scenario than job applicants with disabilities. You still are advised to refrain from asking employees about a disability's existence, nature or severity. You only may seek disability-related information from a current employee if there is a "reasonable basis" for you to believe the employee is unqualified to do the job, needs a reasonable accommodation, or poses a direct threat to the health or safety of the employee or others. An employee who suffers a seizure while on a roof presents a good example of a situation that likely would serve as a reasonable basis for you to seek disability-related information from that employee.
Existing employees should be evaluated on their job performances only. If an employee's job performance begins to suffer, it certainly is permissible to meet with that employee to discuss the drop in job performance. If you have a reasonable basis for believing an accommodation is needed to improve job performance in the position's essential functions, you may ask the employee whether an accommodation is needed.
If you employ individuals with obvious disabilities and believe those employees will need reasonable accommodations to perform the job's essential functions safely, you are required to make reasonable accommodations for those employees without waiting for them to ask for reasonable accommodations. Moreover, if you and an employee are meeting to discuss the employee's performance and the employee reveals he or she suffers from a disability that is affecting performance, you may discuss with the employee whether you can provide a reasonable accommodation to help the employee improve his or her job performance.
You also can require employees without obvious disabilities who claim they suffer from a disability to provide medical documentation to establish the employee does, in fact, have a disability. If an employee with a disability—obvious or not—is unable to perform the job's essential functions with or without a reasonable accommodation, the employee is not entitled to ADA protection. In other words, it is not a violation of the ADA to terminate an employee who is unable to perform a job's essential functions with or without a reasonable accommodation.
Final advice
You should prepare written job descriptions that identify the essential functions of positions your company is seeking to fill.
Having a job description that identifies a job's essential functions helps support your argument that any questions about an applicant's ability to physically perform the job are job-related and not posed to discriminate against individuals with disabilities. A job description also can help support the argument that any medical information relied on when rejecting an applicant is job-related and consistent with business necessity.
A written job description can be your best defense against a discrimination charge.
Philip J. Siegel is a partner with Atlanta-based law firm Hendrick, Phillips, Salzman & Flatt.
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