Can we ask about prior WC claims on app?

HR in Okla

Balloonman, our WC guru, and I have been having an off-line discussion about my dilemma about hiring a couple of people with recent work comp injuries. These came to light on post-offer background checks. He says I can't legally withdraw the job offer because of their work comp history. Our discussion revolves around the legality of having a question about prior on-the-job injuries on your application. Or alternatively, having a post-offer questionnaire about injuries.

I don't think you can have it on the job app, but what about post-offer questions? Opinions, please.

Theresa Gegen TX

The EEOC has published guidance on its website that asking such questions pre offer violate the ADA. Your state law may also have some rulings about it. I am not sure if this guidance has ever been tested in court, but I doubt you would want to be the employer that pays to challange it and make new law (which may not agree with you).

You are better off not asking. You need to know if the employee could do the essential functions of the job with or without reasonable accomodation. A post offer physical can be given to ensure they can do the job.

Also, you could as the employee if they were ever disciplined for a safety violation at their former job, which could provide even more valuable infor.

Good Luck!

jimlegal

Better to err on the side of safety and NOT ask about any prior workman compensation claims. You can ask questions concerning the ability to perform the job for which they are applying. Depending on which way you phrase the legal question you could receive the voluntary information. Good luck...

HR in Okla

Our app does contain a question asking: "Can you perform the duties of this job with or without accomodation?" That's all I ever ask. When we check the work comp record post-offer and discover a history of multiple claims or claims that are recent or pending, it certainly makes me nervous.

However, I have hired several people under just these circumstances, then had a discussion with them prior to their starting work. I tell them that during our routine background check I learned of their previous injury and tell them I want to make every effort to be sure they are not reinjured, offering additional training or whatever they might need. So far they've always said, "oh, I'm just fine now." and none of them has had an on-the-job injury.

Brad Forrister

You can't ask about prior WC claims pre-offer - although it is fine to describe the job's physical demands and ask if they can perform them.

Post-offer, here's what our Special Report says:

"Once you’ve given the applicant a conditional offer of employment, all
bets are off. You may now ask many of the questions you couldn’t ask before —
including questions about an applicant’s previous work-related injuries (which
should satisfy any second injury fund informational requirements that your state
workers’ comp law may require), workers’ comp history, prior sick leave usage,
illnesses or diseases, and general health."

As the report indicates, some states' Second Injury Funds require that you find out this info, or you lose access to the fund for payment of resulting injuries.

You can also, of course, require a physical.

Brad Forrister
Director of Publishing
M. Lee Smith Publishers

Balloonman

To follow up on the previous post...........you cannot rescind the job offer based on the WC history. You can however rescind it if they failed to accurately disclose the WC claim/injury history as the falsified the paperwork.
My $0.02 worth.
DJ The Balloonman

jimlegal

You may wish to visit the EEOC website at: [url]http://www.eeoc.gov/docs/preemp.html[/url]
Which will address your question both pre-offer & post offer.

Post-Offer

At the "post-offer" stage, an employer may ask about an
individual's workers' compensation history, prior sick leave
usage, illnesses/diseases/impairments, and general physical and
mental health. Disability-related questions and medical
examinations at the post-offer stage do not have to be related to
the job.19

Hope this additional information helps!

HR in Okla

Thanks for the good info. from everyone. I have been reluctant to pursue any questions about WC history, but now feel better about asking those POST-offer questions.

Will check EEOC website too.

Balloonman, want to share that questionnaire you use?

HR

davekunes

Do a full background check prior to employment. Currently we do a criminal and WC background as well as a drug test, before the final interview or hire.