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What to ask? Avoiding disability discrimination

It is illegal under both California and federal law to discriminate against an employee because of an employee’s disability. But what happens when an employer simply tries to obtain information about an employee’s health? Simply put, do so at your own risk.

The law allows employers to ask questions that are not likely to elicit information regarding a disability. General questions about an employee’s well-being ("How are you?") are permissible. Also permissible is asking an employee who looks sick or tired if they are feeling okay. You can ask a coughing or sneezing employee if they have allergies or a cold. It’s also permitted to ask how an employee who recently lost a loved one or went through a divorce is doing. Asking a pregnant employee when her baby is due is allowed. You can also inquire as to whether an employee has been drinking or using illegal drugs. These, for the most part, are general questions not likely to require the employee to provide information regarding a disability.

However, questions related to an employee’s disability are much more problematic. For example, here are some questions that should never be asked:

  • Have you ever had a disability?
  • How did you become disabled?
  • How severe is your disability?

Also, be sure to avoid asking an employee’s co-worker, friend or family about the employee’s disability. Employers also are prohibited from asking an employee to provide medical documentation relating to a disability. Don’t ask about an employee’s genetic history, worker’s comp history, or whether they are taking medication or prescription drugs. And finally, avoid asking what can appear to be a general question, like "What impairments do you have?". While such a question seems general in nature, it is a direct attempt to solicit information regarding a disability and that is illegal. In sum, tread very carefully when asking about even a potential employee disability.

This article is for education and information purposes only; it should not be construed as legal advice. If you have an employment law question for inclusion in a future article, contact Brett T. Abbott at Gubler & Abbott LLP (bta@thecalifornialawyers.com).For specific employment law advice or other legal assistance, contact Gubler & Abbott LLP, (559) 625-9600, 1110 N. Chinowth St., Visalia, CA 93291 ( www.thecalifornialawyers.com).

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