Wednesday, February 11, 2015

Can Employers Inquire About Past Work Related Injuries?

On duty injuries are difficult to manage. They leave employers short staffed and the employee with injuries that are sometimes permanent. If only there was a way to select or assign employees who were least likely to become injured on the job. If only there was a way to know about an employee’s past injury record so as to avoid hiring or assigning an individual to a job to which he or she may have a higher than normal risk of re-injuring themselves. If only employers could ask during the job interview about past on the job injuries.

Unfortunately, employers can’t do this. First of all, asking a job applicant if they have ever been injured on the job before may lead to an ADA violation. Basing a hiring decision, even in part, on a medical condition, is unlawful. Legitimate safety concerns do not diminish an employer’s obligation to avoid otherwise unlawful inquiries of applicants. Employers must restrict their inquiry in this regard to whether the applicant can perform the essential functions of the job with or without a reasonable accommodation.

Further, an employer inquiry of past on the job injuries violates state law as well. The Illinois Right to Privacy in the Workplace Act provides as follows:

              Sec. 10. Prohibited inquiries.

          (a) It shall be unlawful for any employer to inquire, in a written application or in any other manner,
          of any prospective employee or of the prospective employee's previous employers, whether that
          prospective employee has ever filed a claim for benefits under the Workers' Compensation
          Act or Workers' Occupational Diseases Act or received benefits under these Acts.

Employers should avoid all inquiries about an applicant’s past medical or injury record. While an employer can always inquire about gaps in employment, if the applicant reveals that the gap was the result of an injury or other medical condition, the employer should stop that inquiry immediately.  Rather, employers can consider requiring a pre-employment fitness evaluation for jobs that carry a higher than average risk of injury or require strenuous physical work, but employers should remember to apply that condition uniformly.

While employee safety and injury avoidance is always important, employers should remember that they must focus on an applicant’s current abilities and not past injuries or medical conditions.