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Common and Costly Mistakes: Workers’ Compensation Injuries 

By April 3, 2017Uncategorized

Our company does not want to hire individuals who present workers’ compensation risks. Can we ask about prior workers’ compensation injuries during the interview process?

No, the Americans with Disabilities Act (ADA) prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training and other terms, conditions and privileges of employment. Specifically, the ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. An individual with a disability is a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment or is regarded as having such impairment.

This means that you cannot ask questions about accidents that caused injuries, prior workers’ compensation claims, or health insurance claims during the application or interview process.

You and any other interviewers should be trained to clearly describe the requirements of the job, and to focus on the applicant’s ability to meet them. Any candidate may be asked if he or she is able to perform all of the essential job assignments safely. Ask the candidate whether he or she can perform the functions of the job, with or without reasonable accommodation. You may inquire as to the applicant’s ability to perform both essential and marginal job functions. However, avoid specifically asking whether reasonable accommodation is needed, or what type of accommodation would be required. 

You may make medical history inquires and even require a medical examination after you offer an individual a job, provided that individuals who are in similar positions are required to do the same. You may then screen out individuals who are physically unable to perform the job’s essential functions provided there is not a reasonable accommodation that would allow them to do so.

If you discover after an offer of employment has been made that the individual does not have a disability and has made multiple workers’ compensation claims in the past, you can factor that information into your final hiring decision.

All personal health information gathered needs to be kept confidential and in compliance with HIPAA. Keep health information in a separate file from other personnel records.

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