Disability disclosure: What and when can employers ask an applicant?

What and when can employers ask an applicant?

Your business is on board with diversity and inclusion. As an employer you know that creating and sustaining such a workplace is a sound business practice; many of your customers (and prospective customers) want to patronize businesses which employ a diverse workforce. Qualified individuals who have disabilities bring with them unique perspectives, experiences and insights (not to mention skills and talent), which can enhance your business. And if your company is in the running for a government contract, your compliance with federal regulations and initiatives is not only mandatory, but documented.

Understand the guidelines for questions about disclosure
There are very specific guidelines as to what questions you ask about a disability or medical condition and it depends on the individual’s status in relationship to your business at that point in time. Is she in the interview process? Have you made her a job offer? Is she now working for you, whether she’s actually started her first day or been working three weeks?  You can find a detailed explanation at the website for the U.S. Equal Employment Opportunity Commission http://www.eeoc.gov/policy/docs/qanda-inquiries.html.

Knowing what you can ask is just as important as what you can’t
The decision to disclose a disability always belongs to a job applicant.

“During the interview process, however, it is perfectly legal for employers to ask a candidate to describe or demonstrate how he or she would perform the essential job functions,” said Helene Levine, JVS Chicago Manager of Work Place Services. “Employers can ask this as long as they ask it of all candidates for the position and not just the individual with a disability. While there is no legal requirement for an applicant to share his or her disability with an employer, when we work with job seekers, we advise them that if their disability will impact the duties of a job, at some point they should disclose.”

From your perspective as an employer, waiting until the interview phase helps ensure you’re complying with federal law which prohibits you from requesting any disability-related or medical information prior to making a job offer. Timely disclosure can help an employer in two ways—by helping the employer meet a federally mandated quota (if a federal subcontractor), and by giving the hiring manager advance notice that an accommodation may be needed before a new hire can begin to work. That’s important to remember, as having a disability doesn’t, by any means, means that an accommodation will be needed.

After the Offer
Once a a job offer has been extended to a job applicant, employers may require medical examinations before hiring and may ask wide-ranging questions that involve disability-related information. However, the information must be requested of every applicant for that position. If an employer uses this information to disqualify a job candidate, the reasons behind the disqualification must not be discriminatory and must be “job related” and “consistent with business necessity.”

And it’s critical for employers to understand that medical confidentiality doesn’t disappear after a hire. There are ongoing restrictions on what an employer can ask after hiring someone.

Achieving a comfortable dialogue

As the person in the hiring or managing position, employers need to get accustomed to asking the appropriate questions at the appropriate time. Since many small business owners do not have a HR staff or a lot of experience in this area, one possibility is hiring a HR consultant during the hiring process.

Applicants with disabilities are being advised to learn to articulate their disability comfortably and confidently. “We do mock interviews with jobseekers to prepare them, and we emphasize positive attitude,” said Levine. “Applicants should disclose their disability in a positive way by describing their skills and how those skills relate to the job—for example, ‘I can do the job with a slight modification to my desk chair.’”

As an employer, the key is to remember that you’re interviewing a qualified job applicant who is also interviewing you, determining if he or she wants to work at your company. Your interview will set the tone for a working relationship with the applicant, should you hire him or her.

For a helpful FAQ on disability disclosure, visit http://www.equipforequality.org/?s=disability+disclosure

For more information on hiring people with disabilities, call 855.INFO.JVS (855.463.6587).

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