| Employers have become very aware of the high | | | | subject to certain conditions such as a job-related |
| costs of compensation claims. The loss to American | | | | medical review. |
| business from both fraudulent claims and re-injury | | | | 3. Any questioning in a job interview should be |
| causes many employers to want to know whether a | | | | restricted to whether the person can perform the |
| job applicant has a history of filing workers' | | | | essential job functions with, or without, reasonable |
| compensation claims. | | | | accommodation. That is another good reason to have |
| At the same time, the Federal Americans with | | | | well-written job descriptions so it is clear in an interview |
| Disabilities Act (ADA), as well as numerous state laws, | | | | exactly what the job entails. |
| seek to protect job seekers from discrimination in hiring | | | | 4. If a candidate discloses a disability, then there should |
| as a result of filing valid claims. The ADA also seeks | | | | not be any follow-up. Questioning should be limited to |
| to prevent the discrimination against workers who, | | | | whether that applicant can perform the job. |
| although suffering from a disability, are nevertheless | | | | 5. If a history of filing workers' compensation claims is |
| able to perform essential job functions as long as | | | | found, then the offer may only be rescinded under |
| there are reasonable accommodations. | | | | very limited circumstances, such as:a. The applicant |
| The bottom line is that an employer cannot request | | | | has lied about a workers' compensation history or |
| workers' compensation records in order to have a | | | | medical condition, usually during a medical |
| policy of not hiring anyone who has made a claim. It is | | | | examination;b. The applicant has a history of filing false |
| discriminatory to penalize a person who has exercised | | | | claims;c. The past claims demonstrate the applicant is |
| a lawful right in a lawful way and filed a valid claim. | | | | a safety or health threat to himself or others in the |
| Employers are well-advised to contact a labor lawyer | | | | opinion of a medical expert;d. The past claims |
| before seeking to obtain workers' compensation | | | | demonstrate the applicant is unable to perform the |
| records. A labor law expert can assist an employer in | | | | essential functions of the job even with a reasonable |
| preparing company policies, job descriptions, and forms | | | | accommodation. |
| and procedures necessary to comply with the ADA, | | | | 6. If the applicant has lied on a medical questionnaire, or |
| such as a conditional job offer and medical review | | | | to a doctor performing a pre-employment physical, |
| form. | | | | then the employer may be justified in rescinding the job |
| The following brief summary describes the major | | | | offer based upon dishonesty. If an applicant has a |
| points involved in obtaining and using workers' | | | | history of multiple claims that have been denied, then |
| compensation records. | | | | an employer may be justified in rescinding the offer |
| 1. There are wide variations between the states in the | | | | based upon a history of dishonest conduct. The |
| availability of these records. In a few states, the | | | | reason is based upon an inference of fraud, not |
| records are not available to the public, period. In other | | | | disability. Some firms contend that a workers' |
| states, it can take two to three weeks to obtain a | | | | compensation record may also be used to determine |
| record. In some states, there are special requirements | | | | the truthfulness of information on a job application on |
| before obtaining the records, such as a notarized | | | | the theory that an applicant may try to hide a past |
| release. Because they are familiar with state | | | | employer where a claim was filed. However, even |
| regulations, background screening firms can assist | | | | with this justification, if used, the best practice may be |
| employers in obtaining these records. | | | | to review the records post-hire only. |
| 2. Under the ADA, an employer may not inquire about | | | | What does all this mean? Before attempting to utilize a |
| an applicant's medical condition or past workers' | | | | search for workers' compensation claims as part of a |
| compensation claims until a conditional job offer has | | | | screening program, an employer is well-advised to |
| been extended. A conditional job offer means that a | | | | consult with their attorney. |
| person had been made an offer of employment, | | | | |