Employers have become very aware of the high costs of compensation claims. The loss to American business from both fraudulent claims and re-injury causes many employers to want to know whether a job applicant has a history of filing workersâ€™ compensation claims.
At the same time, the Federal Americans with Disabilities Act (ADA), as well as numerous state laws, seek to protect job seekers from discrimination in hiring as a result of filing valid claims. The ADA also seeks to prevent the discrimination against workers who, although suffering from a disability, are nevertheless able to perform essential job functions as long as there are reasonable accommodations.
The bottom line is that an employer cannot request workersâ€™ compensation records in order to have a policy of not hiring anyone who has made a claim. It is discriminatory to penalize a person who has exercised a lawful right in a lawful way and filed a valid claim.
Employers are well-advised to contact a labor lawyer before seeking to obtain workersâ€™ compensation records. A labor law expert can assist an employer in preparing company policies, job descriptions, and forms and procedures necessary to comply with the ADA, such as a conditional job offer and medical review form.
The following brief summary describes the major points involved in obtaining and using workersâ€™ compensation records.
- There are wide variations between the states in the availability of these records. In a few states, the records are not available to the public, period. In other states, it can take two to three weeks to obtain a record. In some states, there are special requirements before obtaining the records, such as a notarized release. Because they are familiar with state regulations, background screening firms can assist employers in obtaining these records.
- Under the ADA, an employer may not inquire about an applicantâ€™s medical condition or past workersâ€™ compensation claims until a conditional job offer has been extended. A conditional job offer means that a person had been made an offer of employment, subject to certain conditions such as a job-related medical review.
- Any questioning in a job interview should be restricted to whether the person can perform the essential job functions with, or without, reasonable accommodation. That is another good reason to have well-written job descriptions so it is clear in an interview exactly what the job entails.
- If a candidate discloses a disability, then there should not be any follow-up. Questioning should be limited to whether that applicant can perform the job.
- If a history of filing workersâ€™ compensation claims is found, then the offer may only be rescinded under very limited circumstances, such as:
- The applicant has lied about a workersâ€™ compensation history or medical condition, usually during a medical examination;
- The applicant has a history of filing false claims;
- The past claims demonstrate the applicant is a safety or health threat to himself or others in the opinion of a medical expert;
- The past claims demonstrate the applicant is unable to perform the essential functions of the job even with a reasonable accommodation.
- If the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then the employer may be justified in rescinding the job offer based upon dishonesty. If an applicant has a history of multiple claims that have been denied, then an employer may be justified in rescinding the offer based upon a history of dishonest conduct. The reason is based upon an inference of fraud, not disability. Some firms contend that a workersâ€™ compensation record may also be used to determine the truthfulness of information on a job application on the theory that an applicant may try to hide a past employer where a claim was filed. However, even with this justification, if used, the best practice may be to review the records post-hire only.
What does all this mean? Before attempting to utilize a search for workersâ€™ compensation claims as part of a screening program, an employer is well-advised to consult with their attorney.