Additionally, when crafting the job description, employers should thoroughly describe the position and qualifications to avoid discrimination claims. Employers must comply with the Americans with Disabilities Act, which prohibits discrimination against individuals with disabilities, as well as GINA, which prevents employers from requiring genetic information about job applicants and employees or their family members at any time, including after a job has been offered. The job description should explicitly note if a position calls for physical activities. Employers can ask about an applicant’s ability to perform specific job functions, qualifications and skills.
In the application process, employers have an obligation to make reasonable accommodations to enable applicants with disabilities to apply for jobs and participate in the interview process. Additionally, an employer must also be aware that if an individual with a known physical or mental limitation is hired, the employer is required to provide reasonable accommodations to that employee as long as the individual is deemed qualified, with or without a reasonable accommodation, to perform the “essential functions” of the job. An employer is not required to provide accommodations if it would create an undue hardship on the operation of the business due to significant difficulty or expense; nor is it required to reassign essential job functions as a reasonable accommodation. Once an employee has made a request for an accommodation, both the employee and the employer have a duty to engage in an interactive process in good faith.
As a result, employers may require medical information to substantiate the employee’s need for a reasonable accommodation. Due to prohibited use of medical information under GINA, it is recommended that if an employer lawfully needs to obtain medical records, the employer should include warning language to the employee on any release to assure that any genetic information that has been obtained in response to the request will be considered inadvertent.
Should a discrimination charge or action be made against an employer under Title VII, GINA, ADA or ADEA, the records should be preserved until the final disposition of the charge or action. State laws may also impose additional record retention requirements. For further resources about hiring veterans, visit the U.S. Department of Labor’s website, www.AmericasHeroesatWork.gov, which offers the information and tools that employers need when hiring veterans. MT
Maisha Shaw and Pamela Nehring are attorneys with Chicago-based Daley Mohan Groble, P.C., a law firm concentrating in the representation of transportation, energy, construction and manufacturing companies across a wide range of employment, environmental, litigation, real estate and other legal matters.