Q: Can we ask references about an applicant’s previous use of sick time? We’d like to get a sense of their reliability.
A: Asking about absences due to illness or injury could run afoul of the Americans with Disabilities Act and give you information about an employee’s inclusion in a protected class that you’d be better off not having before hire. Therefore, we strongly advise against making any inquiries into their history of calling in sick.
Additionally, if you’re in a state that requires you to provide sick leave, making adverse employment decisions based on use of protected sick leave use (including deciding not to hire someone) could expose you to liability.
However, when calling references, it is permissible to ask generally about attendance and tardiness to get a feel for the candidate’s reliability.
Want to learn more about the Americans with Disabilities act and your responsibilities as an employer? Download the free guide.