What obligation do we have to rehire someone who left for an injury?
Q: We had an employee quit his job a few years ago due to a medical condition. He has now reapplied, but we’re concerned about his physical ability to do the job. What options do we have?
A: You have the same obligation to evaluate your former employee as you would any other candidate for the position. In other words, don’t assume that he physically can't perform the job simply because you know about his past medical condition. A California police officer was recently allowed to continue his claim against his former employer because they did just that: they refused to consider him for rehire. The police officer had previously retired due to a physical condition, but he reapplied as a new recruit and finished at the top of his field. Rather than viewing him as a top applicant, the city ignored his qualifications and dismissed his application based on his past medical issue and his indication that he might need a reasonable accommodation (Gardner v. City of Berkeley, ND Cal, Jan. 2012).
Tips: Under the Americans with Disabilities Act (ADA), you can ask whether a job applicant can perform the essential functions of the position with or without a reasonable accommodation. This is a “yes” or “no” question—you can’t require them to check a box indicating whether they will need accommodation, unless you’ve already made a conditional job offer. However, if the individual’s disability is obvious or the individual has volunteered information about the disability, you could ask them to describe or demonstrate how they would perform a job function. Once a conditional job offer is made, if the applicant indicates the need for an accommodation, then you must engage in the interactive process to determine what modifications could be made. You should never assume that an applicant can’t perform the job without first going through the interactive process. You may eventually determine that there is no reasonable accommodation that would allow the individual to physically perform the job, but your obligation is to at least explore options before you arrive at that decision. Keep in mind that these same rights apply to former employees even if they previously left for a medical issue. Need more on the ADA’s requirements? Check out our Legal Guide, “ADA: Reasonable Accommodation and the Interactive Process” (1078).