Medical Staff Membership and the ADA
The Americans With Disabilities Act, passed in 1990, is designed to protect individuals with disabilities against discriminatory hiring practices. Employers may not ask potential employees questions related to disability unless they pertain to the ability to perform specific job functions.
Most physicians are not hospital employees, so it has been argued that the law does not technically apply to questions asked on an application for medical staff membership. Over the years however, attorneys have advised that the line is a fine one, and it is legally safer to consider the law applicable.
There are a couple of areas that tend to be problematic on medical staff applications, and it would be good to review your application to determine whether any wording changes are advisable. For example, it is permissible to ask about current use of illegal drugs. Is it, however, acceptable to ask about past use of illegal drugs? The answer is...maybe.
The U.S. Department of Justice Civil Rights Division answers the question this way:
May an employer ask applicants about their prior illegal drug use?
Yes, provided that the particular question is not likely to elicit information about a disability. It is important to remember that past addiction to illegal drugs or controlled substances is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, the question is fine as long as it does not go to past drug addiction.
Example: An employer may ask, "Have you ever used illegal drugs?" "When is the last time you used illegal drugs?" or "Have you used illegal drugs in the last six months?" These questions are not likely to tell the employer anything about whether the applicant was addicted to drugs.
However, questions that ask how much the applicant used drugs in the past are likely to elicit information about whether the applicant was a past drug addict. These questions are therefore impermissible at the pre-offer stage.
Example: At the pre-offer stage, an employer may not ask an applicant questions such as, "How often did you use illegal drugs in the past?" "Have you ever been addicted to drugs?" "Have you ever been treated for drug addiction?" or "Have you ever been treated for drug abuse?"
May an employer ask applicants about their drinking habits?
Yes, unless the particular question is likely to elicit information about alcoholism, which is a disability.
Another point worth noting; be careful what questions you ask of a reference:
May an employer ask third parties questions it could not ask the applicant directly?
No. An employer may not ask a third party (such as a service that provides information about workers' compensation claims, a state agency, or an applicant's friends, family, or former employers) any questions that it could not directly ask the applicant.
Source: US Department of Justice Americans with Disabilities Act Q&A
http://www.usdoj.gov/crt/ada/qandaeng.htm
These marathon phone conversations resulted in a couple of things, first, a sore ear. Maybe it's time to get one of those cool high-tech head sets. Any excuse for a new toy...
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