Can An Employer Ask Questions About an Applicant’s Prior Workers’ Compensation Claims and Previous Medical Conditions?

Employers have long understood that making “good” hiring decisions can have a significant impact on workers’ compensation costs. Until more recent times, there was essentially no limitation on an employer’s ability and right to request and rely upon whatever information it deemed necessary to “avoid hiring a claim”, so to speak. Whether it was information about previous workers’ compensation claims or pre-existing physical or mental conditions or genetic information, employers sought as much information as possible to minimize the likelihood of hiring an employee who might be injured at work. That ability has been substantially limited, which is the focus of this blog post.

Ultimately, the answer is Yes, but only after a conditional offer of employment has been made and before employment has begun, as long as the employer asks the same questions of all entering employees in the same job category. The ADA prohibits an employer from asking questions about an applicant’s prior workers’ compensation claims, previous injuries, and pre-existing conditions prior to making a conditional offer of employment to the employee. In the pre-conditional offer stage of the hiring process, the employer should focus upon the applicant’s abilities to perform the essential functions of the job and the applicant’s qualifications. The EEOC has given guidance documents in this area. EEOC Guidance documents are best practices publications and it should be noted that these EEOC directives do not have authoritative effect on courts or judges. However, courts have held that even though such publications are not formally promulgated as regulations, they are “at least a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Conroy v. New York State Dept. of Correctional Services, 333 F.3d 88 (2nd Cir.2003).

For more information regarding what questions can be asked before an employee begins working for an employer, please contact Robert Seybert at rseybert@baylorevnen.com or any of the firm’s employment or workers’ compensation attorneys at (402) 475-1075.