Job applicant's cancer likely is off-limits to an employer

April 12, 2006|By CARRIE MASON-DRAFFEN | CARRIE MASON-DRAFFEN,NEWSDAY

Can an employer legally ask an applicant about current illnesses? And how much does the applicant have to reveal?

I ask because I had cancer. Since surgery more than a year ago I have been cancer-free, but I am still in the five-year waiting period before the term "cured" applies to my condition.

I will be looking for a job soon, and I don't want to have to tell a prospective employer about my health. If I do wind up telling the interviewer I had cancer, can the person use the information to justify not hiring me?

Based on the scenario you describe, you don't have to tell the company you had cancer, said Lisa Sirkin, supervisory trial attorney in New York's Manhattan office of the U.S. Equal Employment Opportunity Commission, which enforces anti-discrimination laws in the workplace.

"The Americans with Disabilities Act prevents an employer from asking about the health conditions of a prospective employee," she said.

The guiding principle of the ADA is to force employers to focus on applicants' skills rather than on their disabilities. The ADA has exceptions that allow employers to inquire about an applicant's health, but in narrow circumstances.

For example, Sirkin said, if a disability is apparent, an employer may legally ask how the applicant can fulfill the major functions of the job.

If the job is "time sensitive" and the individual reveals that she has to be out during key times because of a disability, "that may be a legitimate reason for an employer to be unable to hire that particular person," Sirkin said.

Some examples of time-sensitive jobs include tax preparation or a high-tech position with a project deadline.

Once you're offered a job, the company can require you to take a medical exam, provided it is related to the job and requested of all individuals performing the same job, Sirkin said.

carrie.draffen@newsday.com

Carrie Mason-Draffen writes for Newsday.

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