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Hiring Decisions Based on Disability

In general, you may not consider an applicant's disability when making hiring decisions. 

There are limited exceptions to this rule. In limited circumstances, you may consider an applicant's disability when making hiring decisions.

You may decline to hire an applicant with a disability if he is unable to perform the essential functions of the job, with or without a reasonable accommodation.

You may reject an applicant with a disability if he would impose a significant risk of substantial harm to health or safety, and the risk of harm can't be limited or eliminated with a reasonable accommodation.

For example, a small repair company advertises to fill a carpenter position that requires the use of power saws and other dangerous equipment. The company could refuse to hire an applicant who has narcolepsy, which causes her to frequently and unexpectedly lose consciousness, if there is no reasonable accommodation that would limit or eliminate the risk of harm.

Determining when an employee may pose a significant risk of harm to himself or others is fact-specific. Among other things, you should:

  • Determine the employee's current ability to safely perform her job based on objective evidence and reasonable medical judgment; and
  • Consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

You may refuse to hire applicants with certain disabilities for particular positions if federal laws or regulations restrict individuals with those types of disabilities from working in those positions.

For example, federal regulations permit employers to refuse to hire individuals with infectious and communicable diseases for positions that require handling food if the risk of transmitting the disease can't be eliminated with a reasonable accommodation. (Different rules apply if the individual with an infectious and communicable disease is an employee, rather than an applicant.)

These rules can be complicated. You may want to consult a lawyer or contact the EEOC for assistance.

See also:

Hiring Decisions Based on Sex

Hiring Decisions Based on Religion

Hiring Decisions Based on Age

Hiring Practices That Have a Negative Effect on Certain Applicants

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