05/ 25/ 2006
Can you ask a potential employee if he's ever had a heart attack? No, and small-business owners looking to cut health-care costs by screening potential hires for health problems during interviews ought to look elsewhere. Keep in mind these rules when you interview any potential employee:
Myth: You can ask potential employees questions about their medical history or disability.
Fact: Although there's no explicit list of interview questions deemed legally acceptable, past court rulings and federal laws provide a guideline. Instead of asking for specific information about an applicant's health history, stick to questions directly relevant to the job. Ask: "Are you able to perform the essential functions of this job with or without reasonable accommodation?" Not: "How many days were you absent from work because of illness last year?"
Myth: If an applicant willingly tells you about a disability he has, you can use that information to determine whether you'll hire him.
Fact: It doesn't matter whether an interviewee willingly tells you about his heart trouble or if you force it out of him—if a person is otherwise qualified for the position, it is illegal to deny the job based on a disability alone. This rule holds true not only during the application process, but also for all employment decisions, including advancement, discharge, compensation and job training.
Myth: It's legal to give applicants health screenings and drug tests.
Fact: Sort of. You can subject potential employees to medical examinations only after a job offer has been made and only if you subject all entering employees to the same examination, regardless of any disability. Drug-testing laws vary from state to state. It's best to check with an experienced employment attorney before screening and testing applicants.
Myth: After a new employee takes a health screening or drug test, the information becomes public knowledge.
Fact: Test results must be kept strictly confidential. If the disability requires emergency medical treatment, then medical and safety personnel may be informed. Supervisors and managers may also be informed regarding necessary job accommodations.
Myth: You can deny employment or benefits to a qualified individual because you assume his association with a disabled person will interfere with his work.
Fact: A prospective employee's associations should have no bearing on your decision to hire. By asking prospective employees if there are any conditions that would keep them from performing the specific duties of the job, you have found out all you are allowed to know about their associations. Let performance speak for itself.
Beth Gaudio is a staff attorney with the NFIB Legal Foundation. This article is intended to provide general information for reference only and should not be considered legal advice.
