ADA and Background Checks: What You Can Ask, and When

If you run screening end to end, your ADA exposure is rarely the interview. It's the reference check that asks why someone left, the health question still sitting in an application form nobody has opened since 2019, and the medical detail that lands in a pre-offer report because no one told the vendor otherwise. Each is a violation on its own, whether or not you act on it.

The Americans with Disabilities Act splits hiring into three stages and applies a different rule to each, so the stage decides what you may ask. October is National Disability Employment Awareness Month, and the Department of Labor's 2026 theme is "Celebrating Value and Talent", a sensible month to audit the process rather than print the poster.

Stage one: before a conditional offer

Disability-related questions and medical examinations are prohibited outright. A disability-related question is one likely to elicit information about a disability, and the EEOC's guidance on preemployment disability-related questions and medical examinations puts medications, hospitalizations, workers' compensation history, prior accommodations, and sick-day counts squarely in that category.

You still have room to work. You can ask about education, work history, certifications, and whether someone can perform the job's essential functions, with or without reasonable accommodation. You can state your attendance requirements and ask about a prior attendance record, provided you never ask why the absences happened. Non-medical checks stay open: criminal records, employment and education verification, and license status through your employment screening services.

The line sits here. "Can you lift 50 pounds repeatedly across an eight-hour workday?" is lawful. "Do you have a back condition that would stop you lifting?" is not.

That line binds your vendor too. The prohibition follows the information rather than the collector, so it holds whether you gather it or a consumer reporting agency does, and the obligation stays with you. Give your provider written instructions never to seek or report medical information in a pre-offer report, stop your reference script at rehire eligibility and job performance, and build your employment verification services around titles, dates, and other factual data points.

Stage two: after a conditional offer, before the start date

Once a genuine conditional offer is on the table, you may ask disability-related questions and require medical examinations, and they do not have to be job-related. The condition is uniformity: every person entering the same job category gets the same inquiry, regardless of disability.

Gathering broadly does not let you act broadly. To withdraw an offer on medical grounds you have to show the reason is job-related and consistent with business necessity, or that the person poses a direct threat that reasonable accommodation cannot reduce.

Stage three: after employment begins

Inquiries and examinations are permitted only where they are job-related and consistent with business necessity, which takes objective evidence: a performance or safety problem pointing to a medical cause, an accommodation request where the need is not obvious, a voluntary wellness program, or a federal requirement like a DOT physical.

One rule holds at every stage. Medical information is kept on separate forms in a separate medical file, never in the general personnel file, and supervisors receive only what they need for accommodation or safety. Anything a lawful post-offer screening turns up belongs in that file, not stapled to a criminal history report.

Running an individualized assessment when a record surfaces

A criminal record is not an automatic disqualification. The EEOC's arrest and conviction guidance discourages blanket exclusions and points employers toward a targeted screen followed by an individualized assessment. Some applicants with disabilities carry records connected to that history, so a blanket rule can create ADA exposure alongside the Title VII kind.

If you do not yet have a documented individualized assessments process, five steps will build one.

1. Run a targeted screen. Weigh the record against the three factors from Green v. Missouri Pacific Railroad: the nature and gravity of the offense, the time since the offense or completion of the sentence, and the nature of the job sought. Set look-back windows by offense type from a documented risk analysis.
2. Issue a preliminary decision and notice. Tell the applicant which convictions are at issue, give them the report, and explain that they can respond with corrections or context.
3. Let the candidate respond. The EEOC sets no fixed period; five to ten business days is common practice. They may show the record is inaccurate or sealed, explain the circumstances and their age at the time, or supply rehabilitation evidence and references.
4. Evaluate what comes back. Reapply the three factors, and weigh the number of convictions, the length and consistency of employment before and after the offense, rehabilitation efforts such as education or training, and how far the offense reaches into this role.
5. Document and decide. Record the reasoning, tie it to job-related factors rather than policy, and complete any FCRA adverse action steps. The assessment and the decision are yours as the employer; a screening partner like KRESS supplies the data and the workflow.

Seven things to fix this October

1. Audit every application form, on paper, in the portal, and in your ATS, and strip out questions on disabilities, medical conditions, medications, and workers' compensation history.
2. Review your interview guides, replacing any pre-offer question that touches medical history, mental health, physical limitation, or past accommodation with one about essential functions.
3. Check your vendor instructions, confirming in writing that your provider does not seek or report medical information in pre-offer reports. An addendum closes this in a day.
4. Make post-offer screening uniform, so everyone entering the same job category gets the same exam or questionnaire.
5. Brief the people who hire. Recruiters and hiring managers need the stage rules and the confidentiality rule, and a 30-minute session closes most of the gap.
6. Write down your individualized assessment process, or pressure-test the existing one against the five steps above.
7. Say it out loud, using the "Celebrating Value and Talent" theme to state your commitment to disability-inclusive and fair-chance hiring compliance.

Frequently asked questions

Can an employer ask about disabilities during a background check? Not before a conditional offer. Neither you nor a screening provider may ask disability-related questions or collect medical information at that stage. After a conditional offer they are permitted, if everyone entering that job category receives the same inquiry.

When can an employer require a medical exam? Only after a conditional offer, and only if all entering employees in that job category are examined. The exam need not be job-related, but any withdrawal of the offer must be, and must account for accommodation.

Does the ADA apply to third-party background check companies? The prohibition applies to the information whoever collects it, and responsibility rests with the employer, so instruct your provider in writing.

An application form written in 2019 is still asking your candidates about their medications today, and every submission it collects is a violation nobody is watching. Book a compliance review of your screening workflow with KRESS this month: our US-based specialists will walk the three stages with you and tell you which questions have to go. The hiring decision stays where the law puts it, with you.