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Use caution when checking workers’ compensation claims

When interviewing job candidates, it’s tempting to check into their past history of filing workers’ compensation claims. But you need to be careful to stay on the right side of the law.

 

Many companies hope to prevent the need for their workers to file workers’ compensation claims. Some, though are taking it a step further.

In recent years, as employers have become increasingly aware of the high cost of fraudulent claims, interest in whether a job applicant has a history of filing workers’ compensation claims has grown.

It’s understandable; employers may want to protect themselves from hiring individuals who have a history of filing fraudulent claims. But they must also ensure that they are not discriminating against job seekers who have lawfully filed workers’ compensation claims.

An employer may not take adverse action (such as withdrawing a job offer) simply because an applicant has filed a discrimination claim against a previous employer. Similarly, an employer also may not take adverse action against an applicant simply because he or she previously filed a workers’ comp claim.

Obtaining previous claims

The Americans with Disabilities Act (ADA) prohibits discrimination against workers who, despite having a disability, are able to perform the essential functions of a job. It also helps protect applicants against discrimination based on previously filed workers’ comp claims.

Inquiring about workers’ comp claims is considered a medical inquiry under the ADA, and such inquiries are prohibited before a job offer has been extended to an applicant.

Employers are allowed to make such inquiries after a conditional offer of employment has been made. However, if an individual is not hired because a medical inquiry reveals the existence of a disability, an employer must be able to show that the reasons for exclusion are both job related and consistent with business necessity. Employers must also be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

The availability of workers’ compensation records varies by location, as workers’ comp laws differ by state. Employers will want to make sure they are aware of their state requirements before seeking records.

Considering previous claims

If employers choose to obtain records, they then face the challenge of appropriately considering the contents in hiring decisions. Again, it is important to understand that the mere existence of previous filings should not prompt an adverse action. A best practice may be to have an attorney review any questionable records before taking an adverse action.

Some of the following findings may prompt an employer to further investigate an applicant’s background:

1. Numerous claims have been filed

It might be alarming to find a record that suggests an applicant has had a lot of injuries. Be aware, however, that the mere fact that an individual has had numerous injuries may not indicate an unsafe employee. Perhaps the individual was injured through the carelessness of others, or perhaps the former employer failed to provide safety training or personal protective equipment (PPE).

If, after further investigation, the employer discovers that an applicant has repeatedly failed to follow safety procedures — resulting in multiple injuries — that might be a legitimate reason to deny employment.

2. Numerous claims have been denied

Workers’ comp claims can be denied for any number of reasons, so a denial in itself is not an indication of fraudulent activity. For example, sometimes a minor injury in the workplace can aggravate a preexisting condition of which the employee was unaware. Treatment of that preexisting condition would not be covered by workers’ comp, despite the workplace incident that brought it to light.

If, on the other hand, after further investigation, the employer finds that the applicant has lied on a medical questionnaire, or to a doctor performing a pre-employment physical, then it might be justified in rescinding the job offer based upon the applicant’s dishonesty.

3. Past claims show a potential disability

Sometimes previous claims may indicate that an applicant might have a lingering physical injury or ailment. While fear and speculation about future problems may be natural responses to this discovery, they are not valid reasons to deny employment.

The results of a medical inquiry may not be used to disqualify persons who are currently able to perform (with or without reasonable accommodations) the essential functions of a job because of fear or speculation that a disability may indicate a greater risk of future injury or absenteeism, or may increase future workers’ comp or insurance costs.

A background check of workers’ compensation claims when making hiring decisions may be useful, but employers must be able to articulate a reason for adverse action that is unrelated to the lawful activity of filing claims. It may be wise to have an attorney review any questionable records before taking an adverse action.


Posted 1:15 PM  View Comments

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