This is one of the biggest areas where the Minnesota Human Rights Act (MHRA) provides significantly more protections for employees in Minnesota than the Americans with Disabilities Act (ADA) does. Even if an employer is complying with the ADA in seeking information, they may run afoul of the stricter requirements of the MHRA.
Both the ADA and MHRA prohibit a prospective employer from asking any medical questions before a conditional offer of employment is made. After such an offer of employment is made, the MHRA requires that any medical questions or medical examination be specifically related to the employee's ability to do the job.
No. Under both the ADA and the MHRA, an employer is prohibited from asking medical questions unless and until a conditional job offer is made. Before that time, no medical questions may be asked of a job applicant. During the interview process, it is permissible for an employer to ask if you meet the qualifications for the tasks of the particular job and ask questions about the ability to perform specific job functions. These types of questions can only be asked if they are asked of all people that are applying for the particular position, not just those who are thought to have a disability.
Example of a permissible question: In this job, employees are required to lift 10-20 pounds several times during the work day. Are you able to do this?
Example of an impermissible question: In this job, employees are required to lift 10-20 pounds several times during the work day. Have you ever injured your back?
Under both the ADA and the MHRA, a medical examination is not permitted before a conditional job offer is made. Both laws also require that if a prospective employer is requiring a medical examination, it must be required of all people who are conditionally offered employment for a particular job, not just those who are suspected of having a disability.
Example: The LNMA Trucking company needs to hire 25 new drivers to service their routes. The job duties require lifting 50 pound boxes of products in and out of the truck all day long. The 25 people that are conditionally offered the jobs (based on passing the company's medical examination) are required to undergo a medical examination. This practice is permissible.
Example: The same scenario as above, only not all 25 prospective employees are required to undergo the medical examination. If LNMA only requires medical examinations of those prospective employees who they suspect might have a history of back problems, be pre-disposed to diabetes, or have a history of cancer, etc., then LNMA has violated the ADA and the MHRA.
Additional protections that the MHRA provides deal with the type of questions that may be asked and the type of examination that may be done. The ADA allows for medical history questions or examinations of any variety, regardless of whether or not the questions or exam have anything to do with the particular requirements of the job, so long as all prospective employees are subject to the same questions/exam, The MHRA goes one giant step further than the ADA in this regard and requires all medical questions and any type of medical examination be specifically related to the individual's ability to do the job.
Example: Employer X wants to make sure that all of its prospective employees whose work entails heavy lifting are able to do the job. It may require a physical exam of all of its prospective employees who have been conditionally offered a job doing this heavy lifting work, but the exam must be limited to tests for essential job-related activities of lifting, bending, and carrying heavy packages. The exam may not test for any other, non-job related illness or injury.
Example: Employer X would be violating the MHRA by requiring this same exam be given to individuals that were given a conditional offer of employment for office/desk type jobs that do not require heavy lifting
Like the requirements for a medical examination, medical questions asked of a prospective employee must relate to the specific job requirements in order to comply with the MHRA. Most questions that begin with "Have you ever had..." would most likely violate the MHRA as these type of questions are over-broad in that they seek information beyond the prospective employee's current ability to do the particular job.
Even though these types of questions might be allowed under the ADA, the MHRA law in Minnesota is purposely more protective for employees in this regard . An employer in Minnesota may not ask these types of questions even if they may be permissible under the ADA.
Examples of types of questions that have been determined to be over-broad include:
- Have you ever had a back injury?
- Have you ever had a shoulder injury?
- Have you ever had a nervous breakdown?
- Have you ever received compensation for an occupational illness or accident?
- Has anyone in your family ever had heart disease?
There are exceptions to these general rules for police officers, persons involved in national security, and for any inquiries that are required to be made by federal law (for example, FAA regulations require airlines to provide specific health information for pilots).
No. An employer is free to chose the most qualified applicant provided that a job applicant's disability is not taken into account in the decision.
Example: Two applicants apply for a truck driving position. Both are qualified. One applicant is disabled and requires a special cushion and controls on the vehicle as an accommodation. The other applicant has a better driving record. The employer is free to choose the applicant who is not disabled.
It depends. If an employer has a legitimate reason to believe that cancer is impacting an employee's ability to perform his or her job and do it safely, an employer may ask questions about the employee's cancer and require a medical examination. However, if poor job performance appears to be related to something other than cancer, the employer should handle the poor performance in accordance with existing employment policies.
Example: Mary works as a bus driver and is undergoing chemotherapy. Mary has always performed her job well in the past. She is taking several day of leave when she has treatment. Mary's employer notices that she appears very fatigued after her shift on days following treatment. Her employer has a right to inquire about Mary's ability to drive her route safely and whether cancer treatments are causing her fatigue. Mary's employer may also inquire as to how long her treatments are expected to continue and whether she requires a reasonable accommodation. Her employer may further request a medical examination to assure that Mary is able to perform her job.
Example: James was treated for cancer several years ago. Recently, he decided to go back to college while continuing to work full time as a waiter. His employer notices that James appears very fatigued at his job since he started classes. The fatigue is impacting his ability to take orders quickly, lift trays and remember orders. James' supervisor may warn him about his poor performance or take other employment action against him but may not ask questions about his medical condition unless there is some evidence that the poor performance is a result of cancer or another illness.