Several years back, we hired a young woman who mentioned during the interview that she had a “genetic heart condition.” She was affable and seemed competent so we took her on as a sales associate. In turn, she took to falling sick about every three weeks, citing her heart condition and telling us each time, “I told you about it during the interview.” How can I avoid this happening again without falling foul of the ADA?
Such stories are disheartening, not just because of the stress and disruption this person caused you but because there are so many people with genuine disabilities who are desperate to work but can’t get a job because of scared business owners. In this case, because the applicant told you about her disability, you could have asked about what accommodations she expected or what special help she would need to do the job (and if she’d said a day off every third week, you could have made a legally sound decision not to hire her). The Americans with Disabilities Act doesn’t make it easy for you to avoid such a situation next time either because you are not allowed to ask whether an applicant has any disabilities or health-related conditions that will prevent him or her from performing the job. (So don’t ask whether they have ever been treated by a medical or mental health professional, ever had a certain disease or illness, or are taking any prescription drugs.) You also can’t ask how many days the person was absent from work because of illness, say, in the last year. According to the U.S. Equal Employment Opportunity Commission, the federal agency that enforces the ADA, you may, however, tell the applicant what your attendance requirements are and then ask whether he or she will be able to meet them. And this should actually be your guide to dealing with the ADA: Ask people what they can do (their abilities), not what they can’t (their disabilities). It’s thus a good idea to attach a detailed job description to the application or describe the job duties to the applicant during the interview. Then ask how they plan to perform the job. “This approach gives applicants an opportunity to talk about their qualifications and strengths. It also allows them to let you know whether they might need reasonable accommodations to do the job,” says employment lawyer Amy Delpo, author with Lisa Guerin of The Manager’s Legal Handbook.
What’s the best way to find new employees?
Have you studied your best customers? Toni Shelaske of Healthy Pet Products in Pittsburgh, PA, says that 95 percent of her staffers were customers of the store at one time. “So they either had dogs or cats with issues, or at least had the vision to seek out better foods, just to have a healthier pet,” Shelaske says.
Is it true that as a business owner, I can’t ask a job applicant whether they have used illegal drugs in the past?
It’s true. Drug addictions and alcoholism are basically considered illnesses under the Americans With Disabilities Act. You can, however, ask, “Do you currently use illegal drugs?” or “What illegal drugs have you used in the last six months?” (Note the emphasis on “illegal,” you can’t ask people what prescription drugs they may be taking.) Depending on your state, you can ask candidates to submit to a drug test, but sometimes it is on the proviso that if they pass, you must offer them the position. Here is a list of drug testing rules for job applicants and employees by state: ppmag.us/9187
