Alabama Workers Comp Act

System

After reading the recent edition of Alabama Employment Law Letter, one of the articles raised my curiosity. The article states: "...the Alabama Workers Compensation Act prohibits employers from terminating employees solely because they make claims for workers comp benefits..." This fact is fairly widely known, however my question is: "what does the statute say about refusing to hire someone because of a previous comp claim? I have always presumed that you were prohibited from using previous comp claims in you decision to hire (or refuse to hire), but I would like to know if the law specifically addresses the issue of hiring decisions based on comp/injury history of the applicant. Does anyone know where that info is contained in the actual statute?

SMace

My concerns regarding this have nothing to do with WC law, but w/ADA. Not only do you have to worry about a true disability, but you have to worry about the perception of a disability. I suggest you talk to your attorney before you go down that road.

System

I agree that to proceed down that path is like walking through a land mine field. We have never used previous comp claim information in our hiring decisions as I have always viewed that as a form of "retaliation" which is specifically prohibited regarding terminations. I am, however, curious as to what the law says specifically about hiring decisons, assuming there is no ADA implications. Let's say, for the sake of discussion, the employer discovers the applicant has filed several lawsuits under workers comp, but has no existing restrictions, disability or impairment. Just a propensity to file lawsuits. Am I legally barred from considering that info in my hiring decision? I know the answer is probably "yes", but I would like to know what my boundries are.

SMace

[font size="1" color="#FF0000"]LAST EDITED ON 01-07-05 AT 12:07PM (CST)[/font][br][br]Even if they are not qualified disabled, they are going to argue that you regarded them as disabled. Then they are covered under ADA and you didn't hire them. Uh oh!

edit
Don you are correct. I did not mean to say if they argue it they are covered. What I should have said is:

Then, if they win the argument, they are covered by ADA and you didn't hire them. Uh oh!

BTW, I think they have a pretty good argument that will take time and money to defend, should it run that course.

Don D

Simply being accused of regarding one as disabled does not equate to guilt of that sin. If I had knowledge of an applicant having filed several WC actions, I would be incompetent not to consider that in my determinations. If I'm not mistaken the Fair Credit Reporting Act makes it illegal to run these sorts of inquiries in background checks, although it is commonly done by agencies providing that service.

In my state there is no such thing as WC retaliation. You'll need to inquire of your state's WC Commission for the answer, unless one of your state forumites responds.





**When we do for others what they should do for themselves, we disempower them.**

System

Which brings me back to my original question: "does anyone KNOW what the Alabama workers comp statutes say about the issue of considering comp history in hiring decisions?"

Don D

No law in existence, state or federal, addresses what an employer can 'think or consider' in making its decisions. Several laws make it unlawful for an employer to make decisions based on certain things/factors, but none of those laws extends to what you might think or consider. If you are an HR professional, surely you would not sit on a witness stand and state that you did consider something prior to your decision that would jeopardize your employer's case.

If I am your applicant and for some reason you KNOW that I have filed six comp claims in the past, you should find some reason to avoid hiring me, period.



**When we do for others what they should do for themselves, we disempower them.**

Brad Forrister

The statute (AL 25-5-11.1) specifically refers to discharge:
[blockquote]
No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11.
[/blockquote]
Your question brings up one of the more complicated interplays of the ADA and state workers' comp laws. The ADA prohibits you from asking about workers' comp history before you make a conditional offer of employment. After making a conditional job offer, you can inquire about a person's workers' compensation history in
a medical inquiry or examination that is required of all applicants in the same job category. And you can discharge for lying about previous workers' comp history at that time - in fact, there's a specific Alabama statute on it.

Under the ADA, an employer isn't supposed to base an employment decision on speculation that an applicant may cause increased workers' compensation costs in the future. But, of course, if you haven't asked illegal questions but just find out the information some other way - like the prospective employee volunteering it - it'll be hard to prove that was what the decision was based on. Unless, of course, you immediately respond with, "Well, in that case, I might as well tear up your employment application right now."

Brad Forrister
VP/Content
M. Lee Smith Publishers

System

Thank you for the clarification. That's very helpful.