Do I Have To Disclose My Medical Condition To A Potential Employer?
What an employer can and can't ask about your disability in an interview
An AOL Jobs reader asks:
I'm so pleased you enjoy my columns! Thanks for letting me know. Your question addresses an important issue about disabilities. In general, you should not disclose any disabilities when applying for a job. The potential employer is not supposed to ask about any disability until it makes what is called a "conditional" job offer. For details on how the Americans With Disabilities Act works and who is covered, read my article 15 Things You Need To Know About Disability Discrimination.
Your columns are extremely educational and full of information. Thank you from an appreciative reader. I may have missed this, but when applying for a job, is it necessary to disclose any medical conditions? I am a Diabetic Type 1, and use a pump, which could bulge through my clothes, though I take care to avoid that.
I was hired by a high-end jewelry store one month ago, and after working for 10 days, was told by HR, that I was "not a good fit." No other explanation. Needless to say, I was devastated. I am a University graduate with a B.A. and have always worked diligently. Does this business have a right to dismiss me?
Let me explain how a conditional job offer works.
- Employer can't: Your potential employer can't ask any questions about any medical issues or require a physical examination before making a job offer. Prohibited questions would be things like, "Will you need any accommodations to perform this job?" "Do you have any medical conditions that would limit your ability to perform this job?" "How long will it take for your broken arm to heal?" or "What medications are you currently taking?"
- Employer can: The potential employer may ask if you are able to perform the job before they make a job offer. For instance, questions like, "Are you able to perform all the duties of this job with or without accommodations?" "How would you perform this job task?" "Can you meet our attendance requirements?" "How many Mondays did you miss work other than holidays and scheduled vacations?" or "Do you currently use any illegal drugs?" If you come to the interview with a broken leg, it's not unusual for the interviewer to ask what happened, but they can't get into details about what treatment you had, how extensive the break is or how long it will take to fully heal.
- Conditional offer: If you get a job offer, it may well have conditions, like passing a drug test or a physical agility test. At that point, the employer can ask if you need any accommodations for a disability. Once you get the job offer, that's the time to disclose if you need any reasonable accommodations. If you need, for instance, a CCTV to help you see your computer screen better, that's something to disclose before you start working. If the employer doesn't want to provide the accommodation, they'll have to show an undue hardship. Make sure you've passed any tests and received an unconditional offer before you give notice at any existing job. You don't want to give notice only to find out the offer was withdrawn.
- Reference checks: The employer can't ask anything from your references that it can't ask you. Questions about whether you needed accommodations, took Family and Medical Leave or needed time off for medical conditions are not allowed. How will you know if they ask? You probably won't. That's a major problem with the law, but if you have a good relationship with your former employer, they may tell you. If you get a call saying, "Wow, they asked me lots of questions about your medical condition," then that's a red flag that something illegal happened.
If the employer finds out about your disability either at the interview stage or after you've been hired and then withdraws the offer or suddenly fires you, then you may well have a disability discrimination case. If you think you were a victim of disability discrimination, I suggest contacting an employment lawyer in your state to learn more about your rights.
If you need legal advice, it's best to talk to an employment lawyer in your state, but if you have general legal issues you want me to discuss publicly here, whether about discrimination, working conditions, employment contracts, medical leave, or other employment law issues, you can ask me at AOL Jobs.
Please note: Anything you write to me may be featured in one of my columns. I won't be able to respond individually to questions.
Donna Ballman’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was the Winner of the Law Category of the 2012 USA Best Books Awards and is currently available for purchase.Donna is the award-winning author of The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She’s been representing executives, physicians and employees in Florida, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and other employment law issues since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the 2011, 2012 and 2013 ABA Blawg 100 best legal blogs, Paralegal 411’s Top 25 Labor and Employment law Blogs of 2013 and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.
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