Important Prohibitions in the Hiring Process For Employers to Know…Part I

by | Jul 11, 2014

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 something that the next series of posts will focus on.

Many employers often ask: can I ask questions about an applicant’s prior workers’ claims and previous medical conditions during an interview?

The simple answers 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.

For more information regarding the prohibitions in the hiring process, please contact Robert Seybert at or any of the firm’s employment attorneys at (402) 475-1075.