Your 
company is hiring but does not want to hire individuals who present workers’ compensation risks.
It is understandable that as an employer you would not want to hire individuals who present workers’ compensation risks, however, asking certain questions about disabilities, past accidents and prior claims is prohibited by the Americans with Disabilities Act (ADA). Here’s why:
An individual with a disability is defined by The Americans with Disabilities Act (ADA) as: “ 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”. The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities including the job application process. 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. Here are some guidelines that may help you during this process.
It is NOT ok to ask whether reasonable accommodation is needed, or what type of accommodation would be required however, the items below are approved guidelines that will help you avoid the murky waters of discriminatory hiring processes.
- 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.
- Possibly inquire as to the applicant’s ability to perform both essential and marginal job functions.
- 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. Only then may you 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.
Remember: 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.
