Can a small employer ask me about medical conditions before hiring me?

I am applying to a small business (less than 10 employees) and the application has the following question:

This position is physically demanding, involves working at heights and operating potentially dangerous machines and vehicles. The position requires a high degree of physical fitness, alertness and full-time dedication to a constant work schedule. Do you have any chronic medical condition that directly or indirectly affects your physical fitness, alertness, or do you have non-work-related responsibilities that would affect your ability to work full-time, including weekends and nights?

Is this an allowable question? I asked the company about this and they said that Federal employment law does not apply to small companies and that this question is important to avoid potentially adverse impacts to the business and to ensure employee safety.

It's both. Taking it literally, it's a legal question. Taking the intent of it, it's clearly "how do I navigate this situation".

4 Answers 4

An employer can ask about conditions that prevent the execution of the job's duties. While you think the employer asked about your medical issues, they didn't. They asked if you had medical issues that prevented you from performing the job. You could answer "yes" or "no" and still keep the medical issues private.

Employers are allowed to ask you if you can do the job. Even the military asks if people have religious or moral convictions against participating in a war. Keep in mind the military isn't asking what your religion is; and, while the question probably upset you, you weren't asked to list your medical condition(s).

Another example that leaps to mind is that airline pilots all need medical certificates. It's not just a self reported statement when you apply. You need formal documentation annual checks of many specific categories signed off by a physician to hold the job.

I'm not sure that the military is a great example, as they generally have quite different laws that apply to them vs. civilian ones. Just because something is allowed in the military doesn't mean it would be allowed by a civilian employer (as an extreme example, a civilian employer can't court martial or imprison you!) That being said, the first paragraph is still correct.

@reirab UCMJ references "unlawful discrimination" in articles 132 and 138, where (direct quote) '“Unlawful discrimination” is any discrimination based on race, color, religion, sex, or national origin.' The contexts are different, the burden of proof is different, the legal process is different, and the punishments are different; but, it is not like the military ignores federal anti-discrimination laws. If anything, a military member would be begging to be prosecuted under civilian law for this matter; but, complaints are raised less frequently as complaining unsuccessfully can backfire.

@EdwinBuck Right. I wasn't trying to insinuate that discrimination was broadly allowed in the military, but rather just pointing out that the legal frameworks for civilian employers and the military are completely different and so something being permissible in the military doesn't necessarily mean it would be permissible for a civilian employer. The military (necessarily) has a lot more control over its members in most regards than a civilian employer has over its employees. Many restrictions on military members would be unconstitutional if applied to civilians, even if by the government.

Is this an allowable question?

Yes, this is allowed. (And the question would be allowed no matter how many employees worked at the company.)

They don't want to know your specific medical conditions. They only want to know if you have any conditions that would prevent you from being physically capable of doing the job. Many job applications have similar questions.

And they are basically telling you that you must be available to work weekends and nights.

If you don't wish to answer for any reason, or if you don't want to work nights or weekends, just decline and move on to a different job possibility.

This position is physically demanding

That is a key point. If you have a shipping company and they ask this of everyone, including office staff, that could be a problem. In theory, asking such a question for positions that do not have physically demanding activity could be construed as discrimination against women (who, on average, are not as strong) or people with physical disabilities (kind of hard to lift 50 lb. boxes from the dock to a truck if you are confined to a wheelchair).

But if they ask it only of the drivers and warehouse workers who all have moving heavy boxes as part of their regular job requirements, it is perfectly fine. In fact, asking in advance, when appropriate, avoids potential future problems, particularly with hidden limitations. Someone could be 6 feet tall and muscular but have spinal problems that prevent lifting more than a few pounds at a time. If they were to apply for a job that had requirements to lift heavy boxes and hid that limitation, it could result in a number of problems - including injuries, lawsuits and wasted time/money by the employer training for a job that the employee can't actually do.

The EEOC has a fact page that goes a bit more in-depth on this, specifically question 17. "An employer does not have to hire you if you are unable to perform all of the essential functions of the job, even with reasonable accommodation. However, an employer cannot reject you only because the disability prevents you from performing minor duties that are not essential to the job."

The existing answers are mostly correct, but I wanted to provide some additional information confirming this.

tl;dr: They are correct that the relevant federal labor laws don't apply to them due to the size of their business, but what they did would be permissible even if they did.

The primary applicable law in the U.S. is the Americans with Disabilities Act (ADA).

Applicability to Small Businesses

You say that the employer has less than ten employees. As it turns out, they're actually correct that ADA does not apply to them. The primary applicable part of the ADA is 42 USC 12112(a), which says:

No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

Initially, it sounds like this might apply, but, as with all laws, definitions of terms are important. 42 USC 12111 defines the terms applicable here. Of particular importance are (2) ("Covered Entity") and (5)(A) ("Employer"):

(2) Covered entity
The term “covered entity” means an employer, employment agency, labor organization, or joint labor-management committee.

(5) Employer
(A) In general
The term “employer” means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person, except that, for two years following the effective date of this subchapter, an employer means a person engaged in an industry affecting commerce who has 25 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding year, and any agent of such person.

So, indeed, ADA is not applicable to this employer if they have fewer than 10 employees. They would need to have 15 or more before ADA protection kicks in. This is largely because, while something might be considered a minor responsibility that could just be covered by someone else in a large organization, that isn't necessarily the case for a small business with only a few employees.

(As a side note, "person" under U.S. law does include corporations, so the definition of "employer" does not exclude corporate employers. Though they would indeed be excluded from ADA requirements if that were not the case.)

Who is a "Qualified Individual"?

While ADA is completely non-applicable to the employer in this case, even if it were applicable, the next question to be answered would be, "Who is a 'qualified individual?'" Of course, the law answers that, too:

(8) Qualified individual
The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

So, if you have a disability that renders you unable to perform one or more of the essential functions of a job, even with reasonable accommodations, then you are not considered to be a "qualified individual" with regards to that job for purposes of ADA protection. Which, of course, makes sense. You wouldn't want to hire someone as a baggage handler or a carpenter if they couldn't lift heavy stuff, for example.

Additionally, note the language in the second sentence. First of all, it's mostly up to the employer (within reason at a court's discretion) to determine what is considered an "essential function" of a given job. Second, if an employer has prepared a written description of the position before advertising or interviewing candidates for it, then that's considered evidence of the essential functions. That's one reason why it's important for employers to have the sort of description you quoted in the question. If a case were to go to court (and the case weren't dismissed for inapplicability of ADA to that employer,) then that job description stating up front physically demanding aspects of the job would be considered evidence in favor of the employer.