Some state and local governments aren't covered by the ADA when hiring

 
 
Posted12/6/2015 6:13 AM
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Q: A friend applied for a job with a local government. After a successful interview, but before being offered the job, he was asked to submit a lengthy health survey with information about his health history, hospitalizations, risky avocations (and whether he used safety equipment), drug history and stints in rehab, alcohol use, and a list of his current medications. Refusing to submit the information was not an option. No offer would be made until the application process, including the health survey, was completed.

Is that legal? Wouldn't that make it possible to discriminate against someone with a physical or medical disability?

A: The federal Americans With Disabilities Act prohibits asking a candidate to answer medical questions before extending a job offer; generally, the most an employer can ask is whether a candidate can perform the job and whether a reasonable accommodation is needed to do so.

Yet your friend's experience, although creepily invasive, isn't that simple.

According to employment lawyer Tom Spiggle, some state and local governments aren't covered by the ADA when hiring.

Each situation is a legal Rubik's cube of facts and "if-then" and "sovereign immunity" and "operating as an arm of the state." So, your friend's inquisition may have been legal for that locality -- but only a lawyer could say for sure.

Q: I am an hourly worker for a pest control company. I average 40 hours a week plus overtime. I was ordered to do only light-duty work by my doctor, and now the company schedules me for only two to three hours a day. Is the company supposed to allow me to work a full day?

A: The ADA requires an employer with at least 15 employees to offer someone in your situation "reasonable accommodations" that allow you to continue working, as long as those accommodations don't create an "undue hardship" for the employer.

In other words, if there is light-duty work available to fill an eight-hour day, and you're able to do it, you could argue that your company is imposing an "improper penalty" on you, Spiggle confirmed.

But the company is not obligated to invent a job for you if that creates a hardship.

If you think your employer is failing to consider other reasonable arrangements that would let you work a full day, start by taking your concerns (and your doctor's written orders) to HR.

If that gets you nowhere -- or if you're penalized for speaking up -- it's time to appeal to an outside authority, such as the Equal Employment Opportunity Commission or -- you guessed it -- an employment attorney.

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