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| Issue: |
You’ve been interviewing candidates for an open position for which the posting indicated that the person hired will work from 2:00pm until 10:00pm. During an interview, an applicant mentions that the hours are ideal for him because he will not have to make any adjustments to his scheduled radiation treatments for prostate cancer, which occur in the early morning and are expected to continue for the next five weeks. He also mentions that he has not had any side effects during his first three weeks of treatment. Can you ask any follow up questions about his cancer without violating the Americans with Disabilities Act? |
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Answer: |
According to the EEOC, an employer may not ask a job applicant who has voluntarily disclosed that he has cancer any questions about the cancer, its treatment, or the employee’s prognosis. However, if an applicant voluntarily discloses that he has cancer and the employer reasonably believes that an accommodation will be required to perform the job, an employer may ask whether the applicant will need an accommodation and, if so, what type.
Once a job offer has been made, an employer may ask questions about an applicant’s health and may require a medical examination as long as all applicants for the same type of position are treated in the same manner. A job offer is not considered “real,” however, until the employer has obtained and evaluated all readily available non-medical information.
In this situation, because the applicant did not request a reasonable accommodation and there was no reason to believe he would require one, the interviewer cannot ask him any questions about the need for reasonable accommodation. In addition, the employer must keep any information the applicant disclosed about his medical information confidential.
Source: EEOC fact sheet: “Questions and Answers on Cancer in the Workplace and the ADA,” reported in Accommodating Disabilities Business Management Guide, New Developments ¶90,060. |
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