This ADA Enforcement Guidance publication sets forth the restrictions on an employer's right to inquire about an applicant's physical and/or mental condition during the application process. Under the ADA, an employer may not ask an applicant disability-related questions, nor conduct medical examinations, until after it makes a conditional offer of employment. For the purposes of these guidelines, a "disability-related" question is one that is likely to elicit information about a disability or is closely related to disability. A "medical examination" is a procedure or test that seeks information about an applicant's physical and/or mental impairments or health. These restrictions help ensure that an employer evaluates an applicant's non-medical qualifications before factoring in possible hidden disabilities. However, an employer may ask about an applicant's non-medical qualifications and skills and her/his ability to perform a specific job function, and may ask the applicant to describe or demonstrate how he/she would perform job tasks, including any needed reasonable accommodations. An employer may also ask an applicant to submit to various assessments, such as physical fitness and physical agility tests, as long as they do not qualify as medical examinations under the ADA.
Once it makes a conditional job offer to an applicant, an employer may ask disability-related questions and require medical examinations, all of which are subject to procedural safeguards.
The EEOC also sets forth a series of frequently asked questions to help clarify an employer's restrictions on disability-related questions and medical examinations in the pre-offer and post-offer stages of the application process. This is a valuable resource for both employers and HIV positive job applicants uncertain of ADA restrictions regarding disclosure of HIV status and other hidden disabilities during the application process.