Q: Can we ask applicants about potential back problems? We have hired a couple of employees who had significant back problems that were not apparent during the interview process and now their problems are causing lost work and productivity.

A: As a general rule, asking applicants about their medical histories, including back problems, is a bad idea under the Americans with Disabilities Act (ADA). The ADA, the federal law prohibiting discrimination against the disabled and requiring employers to provide qualified disabled individuals with reasonable accommodations, also limits the types of medical inquiries employers can ask applicants and employees, regardless of their disability status.

Under the ADA, an employer may not ask about the existence, nature, or severity of a disability and may not conduct a medical examination until after the employer extends a conditional offer of employment to the applicant. This prohibition on pre-employment medical inquiries includes any inquiry likely to elicit information about a disability. The restriction is intended to prevent employers from making decisions based on an applicant’s hidden disability. For example, according to the Equal Employment Opportunity Commission, employers may not ask such questions as:

(1)    whether the applicant has been treated for any specific diseases;

(2)    whether the applicant has been hospitalized and why;

(3)    whether the applicant has ever been treated by a psychiatrist or psychologist or for any mental conditions;

(4)    how many days the applicant was absent from work because of illness;

(5)    what prescription drugs the applicant takes;

(6)    whether the applicant has filed for workers’ compensation or had any work-related injuries; or

(7)    whether the applicant has any physical or mental conditions or impairments that affect his ability to perform certain tasks or the particular job in question.

Thus, you should not ask about potential back issues or make any inquiries about past back injuries, etc., at that pre-offer stage. Instead, your inquiries at the pre-offer stage should focus on the applicant’s ability to perform specific job-related functions, not on any potential medical condition.

The ADA allows medical examinations only after a conditional offer of employment has been extended (and before the applicant begins employment) and only if certain other requirements are satisfied. Specifically, medical examinations are permitted after an offer if: (1) all entering employees in the same job category must undergo the examination; and (2) the information obtained is treated as a confidential medical record and is kept in a medical file separate from other personnel information. These post-offer examinations and inquiries do not have to be job-related. For example, you may require a full physical examination or ask questions that are prohibited in the pre-offer stage about previous illnesses, injuries, or medications. In addition, if the initial post-offer medical inquiry or examination indicates that additional information is needed from a particular applicant, you may do a follow-up examination or make additional inquiries as long as the follow-ups are related to the previously obtained medical information.

Thus, you can ask about back problems as long as you are using them only at the post-offer stage and follow the ADA’s requirements. However, most HR and legal experts suggest that you should limit the scope of follow-up questions and examinations to obtain only the information actually needed to make a final employment decision for two reasons. First, this medical information you gather about back problems may be considered evidence in a future ADA claim alleging that you knew about an employee’s disability and did not provide reasonable accommodation or regarded the employee as disabled or that you did not hire an applicant because of a disability or perceived disability.

Source:  HR Matters E-Tips, Personnel Policy Service, Inc.  HR Matters E-Tips is a free service of Personnel Policy Service, Inc. To subscribe, go to: http://www.ppspublishers.com/ezsignup.htm