Employers that are covered by the Americans with Disabilities Act of 1990 (“ADA”) should be aware of restrictions on the questions they may ask job applicants. Under the ADA, an employer may not ask an applicant disability-related questions until after it has made a conditional offer of employment. Unfortunately, it can be difficult for employers to determine whether a question is a disability-related question. What follows are some examples of permissible and impermissible questions at the pre-offer stage.

 An employer may ask whether an applicant can perform listed job functions with or without reasonable accommodation. However, an employer generally may not ask whether an applicant will need a reasonable accommodation to perform the job. For instance, a job application may not ask, “Do you need a reasonable accommodation to perform this job?” or “Can you do these functions with ___ without ___ (check one) reasonable accommodation?”

An employer may ask whether an applicant can meet its attendance requirements. An employer may also ask about an applicant’s prior attendance record. For instance, an employer may ask, “How many days were you absent from work last year?” However, an employer may not ask, “How many days were you absent from work last year because of illness?” An employer also may not ask an applicant about his or her workers’ compensation history.

An employer may ask an applicant about his or her current illegal drug use. An employer may ask an applicant about his or her prior illegal drug use, so long as the questions are not likely to elicit information about past drug addiction. For instance, an employer may ask, “Have you ever used illegal drugs?” or “When is the last time you used illegal drugs?” However, an employer may not ask, “How often did you use illegal drugs in the past?” or “Have you ever been addicted to drugs?” or “Have you ever been treated for drug addiction?”

An employer may ask an applicant about his or her current lawful drug use, so long as the questions are not likely to elicit information about a disability. For instance, an employer may not ask, “What prescription medications are you currently taking?” or “Have you ever taken AZT?”

Employers should review the questions asked in applications and interviews with their human resources staff and legal counsel to ensure that all questions are consistent with the ADA.

Jessica Durbin is a Director with the law firm of Johnson, Killen & Seiler, P.A. Ms. Durbin represents employers in employment law and labor relations matters.