April 28, 2020

Three Shades of Gray

The U.S. EEOC’s recent headline is a great reminder about the lessons employers need to learn before making disability-related inquiries or requiring medical exams. The lesson cost one employer $650,000. The Americans with Disabilities Act (ADA), which covers employers with 15 or more employees, breaks the permissible inquiries into three categories.

Pre-employment – zero, zip, no disability-related inquiries or exams. OK, there is an exception when you see the individual and observe what reasonably appears to be an impairment (uses a cane, walker or assistance animal). You may inquire as to what reasonable accommodation, if any, the person would need to perform the essential functions of the job.

Post-offer – now you may ask “any” disability-related questions and/or require a medical exam.

In employment – you may require an employee to submit to a medical exam or answer disability-related inquiries only as they relate to the employee’s ability to perform one or more essentials functions of the employee’s job.


  1. If you require post-offer medical exams, you may want to make your offer conditioned upon the results of the exam.
  2. If you require post-offer medical exams, you must require it of every candidate to whom you make an offer in that job classification. Don’t pick and choose or stereotype and require the exam only of candidates who (appear to) have a disability, or are pregnant, older…you get the idea. Click here for EEOC guidance on this topic, particularly, “Hiring Do’s and Don’ts.”