Ask HR: Can We Ask References About an Applicant's Use of Sick Time

Check out the latest question posed to HR Support Center's expert, Rebecca, on acceptable things to ask an applicant's references during the recruiting process.

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: I strongly advise against making any inquiries into their history of calling in sick. 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.

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.

This information is intended for informational purposes and should not be considered legal advice.

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