Under the ADA, questions about disability are limited, according to the stage of the hiring process. “Under the ADA, job applicants do not need to reveal their disabilities before being hired,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District Office. “When an employer penalizes an employee for not raising issues of disability and reasonable accommodation during the job interview, it is requiring the employee to reveal information the employee legally does not have to divulge. An employer must engage in the interactive process when an employee raises issues of reasonable accommodation.”
Disability disclosure can occur during any stage of the employment process, including pre-employment, post-offer, and while employed – whether it's days, months, or years of being hired. Generally, it is up to the individual with the disability to determine the right time to disclose, and they only need to disclose if they need an accommodation in the workplace.
Sometimes an employer believes that an applicant should disclose during the application or interview stage, even though this is not required. Employers may feel they have been deceived when the accommodation request comes after being hired. It's important to understand that the ADA does allow this.
The three stages:
- Pre-Employment: An employer can't require an applicant to disclose disability information before making an offer of employment. There may be situations when the applicant must disclose early. Some examples include if an accommodation is needed to participate in the job interview, to take an employment test, or to complete an on-line application.
- Post-Offer: During this stage, an individual can be asked about their medical history as long as the employer asks the same questions to others who have been offered the same type of job. More medical information can be required if the follow-up questions are related to the medical information received during the post-offer inquiry or examination. Remember that the information revealed during this post-offer stage can't be used to rescind the job offer, unless it is determined that the person is unable to perform the job (with or without accommodation) or would pose a direct threat.
- Disclosure to Receive Accommodation: An individual does not have to disclose disability information unless there is a need for reasonable accommodation. Sometimes it is after the individual begins working that it becomes evident that an accommodation will be needed. This means that the need for accommodation can arise at any time in the employment process.
Here are some resources to help understand these important issues: