Speaking or remaining silent about illness during a job interview?

May an employer inquire about an applicant's disability or illness during a job application process? And when should the applicant make this known? These are important questions for employers; they like to know about possible limitations of applicants. Limitations could make the employee unsuitable for the job. Moreover, employers must continue to pay wages if the employee becomes ill.

Questions

Employers are prohibited from asking questions about health and sickness (absence) during a job application process, including any disability or chronic illness of the applicant. The employer may, however, order a medical examination. However, this is only permitted if the position in question makes special demands on the applicant in terms of medical suitability. One example is professional football players. The possibilities for the employer to find out whether the applicant has limitations are therefore very limited.

Answers

What can be expected of the applicant in this context? The privacy interests of the applicant are paramount. Case law suggests that the mere fact that someone has a disability or illness does not necessarily make them unfit to perform the job offered. However, under circumstances the applicant can be expected to inform the potential employer of his limitations. This is the case if he knows or ought to know that his disability or illness makes him unsuitable for the job offered.

If it is established after employment that the employee cannot perform the job due to a disability or illness, and the employee has kept quiet about this during the application process, this may have consequences for the employee's employment. For example, there may be no obligation for the employer to continue paying wages during illness, the employer may request the subdistrict court to dissolve the employment contract, or the employee may be summarily dismissed. Note that it depends on the circumstances of the specific case whether a measure can be used and, if so, what measure this should be. It is highly recommended to consult with a legal professional first in such a case.