EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Disability-Related Inquiries And Medical Examinations

December 10, 2002

Dear

This is in response to your recent letter asking the Equal Employment Opportunity Commission (EEOC) to review an employment application used in the past by one of your clients to hire police personnel. You believe that the application, which contains a medical history questionnaire, asks some questions that are impermissible under the Americans with Disabilities Act (ADA).

The Commission has issued an enforcement guidance relevant to your inquiry. The document, entitled "ADA EEOC Enforcement Guidance: Preemployment Disability-Related Questions and Medical Examinations," defines the term "disability-related inquiry" as a question that is likely to elicit information about a disability. The document also gives examples of questions that employers may and may not ask applicants. This document and other ADA guidances are available on our website at www.eeoc.gov.

Most of the questions on the medical history questionnaire you enclosed are disability-related inquiries. An employer is prohibited from asking disability-related questions or requiring a medical examination before making an individual a conditional job offer. After the employer extends an offer for a position, it may ask the individual disability-related questions or require a medical examination as long as it does so for all entering employees in the same job category. Thus, while many of the referenced questions are impermissible pre-offer, they may be asked after a conditional offer of employment has been made. An employer that uses the results of such questions to screen out an individual because of a disability must show that the exclusionary criterion is job-related and consistent with business necessity. An employer also may make disability-related inquiries to current employees, but only if they are job-related and consistent with business necessity.

Questions about whether an applicant ever has: "been treated for Diabetes," "had blackouts," "been unable to hold a job because of [his/her] inability to assume certain Physical positions," or "been refused employment due to [his/her] health or some other physical defect" are all likely to elicit information about a disability and, therefore, are prohibited at the pre-offer stage. The ADA also prohibits employers from asking an applicant about the number of days s/he was absent specifically because of illness or injury because these questions relate directly to the severity of an individual's impairments and, therefore, are likely to elicit information about a disability. Enforcement Guidance at 9. Further, although an employer may ask an applicant whether s/he drinks alcohol, questions about how much alcohol an applicant drinks are likely to elicit information about whether the applicant has an alcohol-related disability and, thus, should not be asked until the post-offer stage. Id. at 12.

An employer also may ask about an applicant's current illegal use of drugs (because an individual who currently uses drugs illegally is not protected under the ADA), but it cannot ask pre-offer whether an applicant currently is taking any prescription drugs, such as tranquilizers, or whether s/he has taken any such drugs in the past. In addition, questions about past addiction to illegal drugs or questions about whether an applicant ever has participated in a rehabilitation program are disability-related because past addiction generally is a disability. Enforcement Guidance at 11. However, these questions may lawfully be asked after a conditional offer of employment has been made.

Finally, although a few questions on the medical history questionnaire are not disability-related (e.g., "Do you have any allergies?" "Do you suffer from hay fever?") and, therefore, do not violate the ADA, it is not clear why an employer would need to know this information at the pre-offer stage.

This letter is an informal discussion of the issues you raised and does not constitute an official opinion of the EEOC. I hope that this information is helpful.

Sincerely,

Peggy Mastroianni
Associate Legal Counsel

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