Diego Demaya spends most of his day answering questions about the federal Americans with Disabilities Act from the other side of a toll-free information and technical assistance telephone line.
Many of his calls are from employers hoping to learn more about how to comply with the law during the hiring process.
As a nonpracticing attorney, Demaya serves as the Southwest ADA Center’s human resources adviser, specializing in labor, education and health care issues for a five-state region that includes New Mexico.
“The world is ripe with inappropriate inquiries,” and especially in employment, Demaya said in a recent webinar on the disability law.
If you are interviewing a job applicant, he advised, don’t ask questions that have nothing to do with the job. For instance, if the job doesn’t involve driving, don’t ask or require job applicants to have a valid driver’s license.
And don’t list physical requirements in job descriptions — such as the ability to reach, bend, push, pull or lift — when the job doesn’t actually involve such movements.
It is illegal to ask job applicants about any health, physical or mental limitations. And the ADA prohibits employers from making any disability-related inquiries and medical examinations prior to making a job offer, even if the questions are job related, Demaya said.
According to Demaya, applicants have no legal obligation to disclose or discuss a disability unless they need an accommodation during the initial application and interview process. They can later request a reasonable accommodation after a job offer has been made.
It’s not illegal for an employer to ask questions about an applicant’s or employee’s background or to require a background check.
But, according to the U.S. Equal Employment Opportunity Commission, any time you use an applicant’s or employee’s background information to make an employment decision, regardless of how you got the information, you must comply with federal laws that protect applicants and employees from discrimination.
Title VII of the Civil Rights Act of 1964 makes it illegal to discriminate against someone on the basis of national origin, race, color, sex or religion.
The Age Discrimination in Employment Act of 1967 protects people who are 40 or older from discrimination because of age.
After a person is offered a job, but before starting work, the employer may make disability-related inquiries and require medical examinations, but this must be done for all entering employees in the same job category and cannot be used to discriminate.
During a person’s employment, the employer may make disability-related inquiries and require medical examinations, but only if they are job-related and consistent with business necessity, said Demaya.
Service animal questions under the ADA also can be problematic.
Recently, I witnessed a customer at a Santa Fe restaurant feeding a dog that was sitting in the chair next to him.
It was unusual. I was pretty sure the dog was not a service animal. Still, it appeared to be OK with the restaurant and certainly none of my business.
To determine if an animal is a service animal, the restaurant staff may ask two questions: Is the dog a service animal required because of a disability? And what work or task has the dog been trained to perform?
Under New Mexico’s Service Animal Act and the federal ADA, people with disabilities have the right to be accompanied by their service animals in restaurants, hotels, stores, theaters and other public places.
Under the New Mexico Service Animal Act, public accommodations must allow you to be accompanied by your “qualified service animal” — a service dog or service miniature horse trained to do work or perform tasks for the benefit of an individual with a disability.
Customers should not be asked to provide documentation or certification for a service animal, as there is no ADA requirement for certification or identification showing that the animal is a service animal.
Andy Winnegar has spent his career in rehabilitation and is based in Santa Fe as a training associate for the Southwest ADA Center. He can be reached at firstname.lastname@example.org.