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Can i ask a health-realted question?

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Junior Member
What is the name of your state? Connecticut

I work for a small, 40 employee, Translation Agency. We are hiring a new Project Manager, because in the last two months we have been swamped with more work than we can handle.

We interviewed a candidate who seemed promising. She left her last full-time job about 1.5 years ago and has been freelancing since then. Freelancers are the norm in our industry, so this did not raise any red flags. When asked about the job change in her interviews, she stated that "circumstances" required her to move across the state and the commute to her old job was simply too great. Given the distances involved, this did make sense.

I also ask every interviewee 1) if they will have any problems with a Monday to Friday, 9-5 schedule and 2) if they will have any problem meeting the requirements of the job. She clearly stated she would have no problems. However, I did not specifically ask if she would need more time off than our two weeks of vacation and three sick days a year.

We decided to make her an offer. The VP called her and asked for references and permission to ask them questions. The references all said that she left her last job due to health reasons. She had to take sick leave and didn't come back. Since she seemed healthy enough in the interviews, and everything else the references told us was very positive, we still made the offer. She was also the only really qualified candidate that we had.

When I called to make the offer, she had many pointed, specific questions about our insurance, disability insurance (which we simply don't have) and sick days. She asked for a few days to think our offer over. All her questions did bother me--most of them I had never been asked before. I estimate her age, based on her college graduation date, at about 29 or 30. Most of our younger employees aren't very concerned about insurance, etc. It is also clear that she is living at home, so it appears that the health problem, whatever it is/was, was the circumstance that required that she move.

It takes about three months to completely train a new person in the basics of the job. Full compentancy takes at least a year, because we do so much varied work. So I am reluctant to hire someone, invest significant amounts of training time and then have the person out long-term due to medical problems. We do have a 90-day probationary period, but she could be perfectly healthy then.

At this point is there any way, legally, that we can ask if she has an on-going health problem? Or address the issue from the angle of will she really be able to accommodate our hours? While we are sympathetic to her need for a job, in a small company such as ours, it is very difficult to cover for people when they are out. I already have Project Managers working 60 hour weeks. We really need someone who will be here all the time. A day or two off for appointments is not a problem, but being out for weeks at a time is. Thanks for any advice you can offer.


Senior Member
When asked about the job change in her interviews, she stated that "circumstances" required her to move across the state and the commute to her old job was simply too great. Given the distances involved, this did make sense. Once she moved, it made sense. I know this isn't what your question is at the moment but in hindsight, you needed to ask what these "circumstances" where. In future interviews, don't overlook probing thoroughly for all the reasons someone left a job. Once you obtained references, you also discovered she was borderline untruthful about her reasons for leaving. That's not a good sign.

You are in a touchy situation. Asking health-related questions during the recruiting process is a very iffy under the ADA. Absent a candidate volunteering the information, all you're allowed to do is inform the candidate of all the job duties and hours of work involved and ask if they are able to perform the job with or without a reasonable accommodation. Now that you've made the job offer, you really can't pull it based on your assumptions without venturing into a legally risky area. However having extended the offer, you now CAN ask specific questions in order to ascertain that she is physically capable of performing the job.

It seems logical to assume that she does have (or at least had) some sort of fairly significant health problem. Perhaps she's fully recovered and she'll be fine and her in-depth interest in your benefits was simply precautionary on her part. I've had job candidates ask some very specific questions about benefits for no other reason than that they wanted to be thorough.

While you can pull the offer, it's risky. The only thing I can tell you for certain is that at your size, you're not subject to the FMLA. If you do find she starts missing work frequently and/or requests leave time, you should be free to discharge her. Of course that means you're back at the starting gate to find a new Project Manager but you/ the organization will have had a learning experience.

By the way, you don't need permission to contact a job candidate's references or former employers.

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