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Dilemma of the Month: Asking About Health

What you need to know about the ADA and evaluating an applicant's health

Back Q&A Jan 3, 2018 By Suzanne Lucas
I interviewed a job candidate who was severely overweight and had trouble walking. While the job is mostly a desk job (administrative assistant), our office is spread out across the entire floor of an office building. The admins are expected to run things back and forth when needed, collect the mail and greet guests at reception. Could I have asked her about her health? I didn’t. I didn’t offer her the job, either, and now I’m feeling guilty. I don’t think she could have done the job. What should I have done?

You were wise not to ask about her health. Asking that is a violation of the Americans with Disabilities Act. But, not hiring her because you thought she couldn’t physically do the job is also a violation of the ADA. If you have 15 or more employees, you’re subject to ADA.

This sounds like it puts a hiring  manager between a rock and a hard place. You can’t ask. You can’t assume. What’s a manager to do when a candidate looks like she will be physically unable to do the actual job? First, let’s start by defining some terms.

Disability

“An individual with a disability is defined by the ADA as a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” That’s the legal definition.

Your candidate immediately qualified, not because she was overweight (although weight can be a qualifier), but because you perceived her as having an impairment. You assumed she couldn’t walk around the office.

Essential Job Function

This is something that is critical for the employee to do. Not all job functions are essential. If an employee can’t perform an essential function (with or without an accommodation), then you aren’t required to hire that person, even if otherwise she is the most qualified.

For instance, let’s say 99 percent of the mail that comes into your office is in envelopes — bills, letters, documents, that sort of thing. But about once a month you get a box of printer paper that the admin puts away.

A three-minute task performed once a month clearly isn’t essential to the job. If the candidate could distribute the mail, but not carry the box of printer paper, a reasonable accommodation is required. (See below.)

It’s critical you address all essential job functions in the written job description, otherwise it can seem like you’re violating the ADA — when in reality, you’ve simply written a sloppy job description.

Reasonable Accommodation

The ADA acknowledges someone with a disability may need some accommodations to do the job. For instance, someone with a fragrance sensitivity may need to work from home sometimes, or have a certain area of the office be “fragrance free.”  

For an office job, that could be quite reasonable. If the job is working at the makeup counter in a department store and the candidate can’t walk around without the overwhelming smell of perfume hitting her, neither of those accommodations are reasonable and you don’t have to make them.

If the admin spends only a few minutes a day doing mail distribution, it’s probably not essential. If greeting people at the door is essential, could you accommodate this function by moving the admin’s desk closer to the front door?

Interactive Process

The ADA requires you to have a back-and-forth conversation with the employee before deciding on an accommodation. So if she says, “I can deliver the mail if you buy me a Segway,” you can respond with, “That’s too expensive,” and present another option. Sometimes you can come to an agreement and sometimes you decide there isn’t a reasonable accommodation. In that case, you’re not obligated to hire the person.

What Can You Ask?

There’s actually a pretty simple question you can ask: “The administrative assistant is responsible for delivering things to various employees, collecting and distributing mail, and getting up to greet guests at reception. Are you capable of doing this?”

If she says yes, you have to accept her at her word. If you regularly do pre-employment physicals, you can certainly do one for her. But you can’t do one just because you suspect a person may be disabled. If she says no, then the next step is, “Is there an accommodation that would allow you to perform these essential job functions?”

Then you could go through the interactive process to see if you can come to a decision.

One caution: You should be asking these questions to all candidates, not just those who you think have a disability. You can generalize your question, as in “Can you perform all the functions of this job?” If you only ask it of people who you think have a disability, then you are violating the ADA.

Should You Have Hired This Woman?

Only if she was the most qualified and could do the essential job functions (with or without a reasonable accommodation). You aren’t required to hire someone with a disability simply because that person can do the job. If there was a better candidate, you could and should have hired that person.

Have a burning HR question? Email it to evilhrlady@comstocksmag.com

Comments

Dr Loden Rogers (not verified)May 19, 2018 - 2:52am

This is a real post teaching or sensitizing people about your health.

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