Many employers either forget or are unaware that the Americans with Disabilities Act restricts disability-related questions on employment applications. In particular, the ADA prohibits discrimination “in regard to job application procedures.” As a result, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.
The EEOC has provided enforcement guidance on this issue:
At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. Of course, this includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability.
Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”
Many employers also want to know about an employee’s history of drug use. This can be a thorny issue because the ADA provides protection for past drug addiction. Current use and addiction are not protected, but past addiction is. The EEOC makes this issue clear as mud with its guidance:
May an employer ask applicants about their prior illegal drug use?
That depends on whether the particular question is likely to elicit information about a disability. It is important to remember that past illegal drug addiction is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, whether the question is likely to elicit information about a disability depends on whether it goes to past drug addiction.
It is safe to say that you can ask an applicant if they are currently using any illegal drugs. You can also ask the general question of whether they have ever used illegal drugs. But, if you ask for more detail beyond those general questions (like “Tell us the extent of your past drug use and whether you received treatment”) you may be close to violating the ADA.
It may be worthwhile to take a few minutes to see if your employment application asks questions that are in compliance with the ADA.