HR ADMINISTRATION – LATEST ISSUES

Q. We operate a medium sized property management company that manages about twenty shopping centers. Recently we were approached by an individual applying for a maintenance position who indicated that he was partially disabled and needed special equipment to operate the day because of fatigue related to his disability. What questions may we ask such individual during the hiring interview to determine the scope of his disability and any special accommodations we might need to make to allow him to perform his work functions?

A. The federal agency administering the Americans with Disabilities Act (“ADA”), the Equal Employment Opportunity Commission (“EEOC”), has recently issued new guidelines concerning permissible pre-employment interviewing. Such guidelines provide clarification of a number of problematical issues that have been raised by employers since the 1992 enactment of the ADA.

* Applicability of the ADA. The ADA covers private companies with more than 15 employees, while the California equivalent, the California Fair Employment and Housing Act covers companies with five or more employees. The ADA generally prohibits employers from engaging in discrimination against qualified potential employees with disabilities. The ADA requires employers to offer reasonable accommodations to job applicants, as long as the accommodation does not create undue hardship on the employer’s business operations. Employers are prohibited from asking disability-related questions or requiring medical examinations of a job applicant before extending a job offer.

* General Guidelines for Permissible Questioning. Under the new guidelines employers may ask any question that is not “disability-related” prior to extending an employment offer. Prohibited “Disability-related” questions include any inquiries that are “likely to elicit information about a disability” or that are “closely related to disability.” Specifically, employers may now ask job applicants if they can perform any or all job functions, whether essential or marginal. The guidelines do not require employers to qualify this question by asking if the applicant can perform the proposed job function “with or without reasonable accommodation.” Employers may also ask applicants to explain how they would perform certain job-related tasks, as long as all applicants in the job category are asked to do so.

* Noticeable or Disclosed Disabilities. The EEOC’s previous guidelines had prohibited an employer from asking questions about the possibility of reasonable accommodations before an offer was extended, even if the applicant voluntarily disclosed the need for accommodation or had a visible disability. Under the new guidelines employers may now inquire as to any reasonable accommodations that may be required. In the case of the applicant described above the employer may ask questions about what type of special equipment was required.

* Compare Situations Where No Disclosed or Visible Disability. If the applicant has no noticeable or disclosed handicap an employer may not ask such questions as “Do you need reasonable accommodations to perform this job” or Can you do the functions of the job with, or without, reasonable accommodation?”

* Disability Related Questioning Allowed after Conditional Job Offering Extended. After a conditional job offer is extended the employer may ask specific questions about an employee’s disabilities and may require a medical examination, as long as these requirements apply for all entering employees in that job classification. If any applicant is screened out by this questioning the employer must demonstrate that the question or examination was job-related and consistent with business necessity. At the post-offer stage, an employer may ask about an individual’s prior sick leave usage, past worker’s compensation history, and questions about that person’s current and prior mental and physical health.

* Recommended Audit of Application Forms and Hiring Procedures. While the new guidelines suggest that the EEOC is taking a more flexible approach to ADA pre-employment interviews it is recommended that employers conduct an audit or review and updating of their hiring procedures and application forms to ensure continuing compliance with the ADA’s revised requirements. The new guidelines may be obtained by contacting the regional EEOC office in Los Angeles.

David M. Griffith is a real estate and business attorney with offices in Long Beach. He serves as legal counsel to California Centers Magazine. For more information please contact 310/983-8017.