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Asking health questions and temporary employment agencies
Mar 4, 1998

I recently applied at Express Personnel, a temporary employment agency. After signing a "conditional offer of employment,' I was given a questionairre asking extensive medical history questions. This "conditional offer of employment" appears to be nothing more than a method to beat the system. Whereas under the ADA, an employer who have made a conditional offer of employemnt can ask more questions concerning their conditions, this conditioner offer of employment does not appear to me to be an offer of employment since I was not sent out on a job. Does anyone know of any Internet based sites with specific information about the legality of the temporaries using this so called conditioner offer of employment to circumvent the ADA. Also, I would appreciate any commentary whether pro or con about this issue.

Response from Ms. Breuer

You are right--the ADA prohibits medical inquiries that are not truly "post-offer"--and if this medical information is being used to prevent you from being given assignments, you may have a claim of discrimination under the ADA or state law.

As you say, the ADA prohibits an employer from inquiring into an applicant's health status, except as to whether the applicant can perform the functions of the job, until after an offer of employment has been made. If an employer does make a medical inquiry, it must make that inquiry of ALL applicants, and the medical information received is onfidential, and may only be disclosed to first aid personnel or government officials enforcing the ADA, or to supervisors, but only as to the restrictions on work because of the disability.

The ADA defines "employer" as "a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks"--therefore the employment agency is likely an employer under the Act. However, if you have not been sent on any assignments, there may be a legal issue as to whether you are an "employee"--simply defined as "an individual employed by an employer."

Regardless the employment agency is also a business, and therefore probably covered as a "public accommodation" under a different section of the ADA as well as by anti-discrimination statutes in most states. If you believe that you are not being given assignments because of your HIV status, contact your local AIDS legal services organization, or the Lambda Legal Defense and Education Fund, or HALSA, in Los Angeles, at (213) 993-1640.



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