Workers’ Compensation: What You Can and Can’t Ask Applicants and Employees

When it comes to interviewing candidates, employers are going to seek to hire the person who is the best fit in all aspects. It makes sense then that employers may want to know whether their future employee has had an injury, or prior workers’ compensation claim, that would impact their ability to perform the role. The same is true when a current employee has an injury, and the employer needs to know the impact it will have on their job. While understanding one’s ability to successfully perform the essential functions of a role is important, employers should know what they can ask and when they can ask it to avoid discrimination and remain in compliance.

Understanding workers’ compensation

While workers’ compensation regulations are state specific, and federal employees have their own regulations, the premise of it is to ensure that employers provide insurance to employees who incur an occupational injury or illness while on the job. Bearing in mind the nuances per state, in most regards, workers’ compensation provides employees with lost wages as well as coverage for treatment for the injury or illness following the filing and approval of a claim. Although most of the protections are for the employee, workers’ compensation can also provide liability protection to employers, such as limiting the ability to be sued for on the job injuries. Since all states have their own requirements with respect to the type and degree of benefits employers must carry, it’s best to review to the Department of Labor guide for state specific regulations.

Who says I can’t ask about prior claims?

While we generally think of the Americans with Disabilities Act (ADA) as a law intended to provide workplace accommodations, the Act has employment protections in place to prevent employers from obtaining medical information about future and current employees that could otherwise lead to discrimination. As a result, the ADA outlines requirements for employers with respect to medical inquiries, which includes injury history.

What medical inquiries are allowed and when?

When it comes to knowing about an applicant’s prior workers’ compensation claim, the ADA allows for an employer to make such inquiries under the following guidelines:

• Any questions about past workers’ compensation claims must be asked of all employees entering the same job category. In other words, an employer cannot ask some applicants, but not others.
• Inquiries about past workers’ compensation claims can be asked once a conditional offer employment has been made, as long as the employment has not started.
• Following a conditional offer, and prior to the start of employment, an employer may require an applicant to go through an examination to obtain information about the nature or existence of prior occupational injuries. A medical exam is only allowable in this circumstance if the employer requires this of all applicants entering the same job category.

How to navigate workers’ compensation with current employees

Once an applicant becomes an employee, employers are able to make additional inquiries in certain circumstances. Similar to the conditional offer stage, there are guidelines to adhere to:

• Inquiries into an occupational illness or injury must be job-related and consistent with business necessity. This means that the employer must have reasonable belief that the injury will impede the individual’s ability to perform their essential duties.
• If a current employee incurs an occupational illness or injury, their employer is allowed to ask disability-related questions, or require a medical examination as long as the scope of the inquiry or exam is job-related and consistent with business necessity.
• Employers have a right to inquire as to the extent of the occupational injury with the intent of understanding their liability. State regulations will apply and employers will need to align any inquiries to their respective state laws.
• If an employee requests a reasonable accommodation where the need for the accommodation is not obvious, then the employer can request medical documentation. The employer can only request documentation related to the condition for which the accommodation is needed.

Key takeaways

While employers should utilize subject matter experts to guide them through these regulations, there are simple steps to remember to remain in compliance:

• In the conditional-offer stage, any inquiries of one employee should be universal to all employees within the same job category.
• Inquiries or examinations should be limited in scope as to only obtain information about the occupational injury or illness.
• Avoid excessive questioning when it comes to reasonable accommodations; only ask for what you need to determine the accommodation.

Remember, despite the stage of employment, applicants and employees are protected under state and federal regulations that limit the scope of medical inquiries which applies to workers’ compensation. When in doubt of how to navigate inquiries, consult your state guide and workers’ compensation manager or administrator.