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Can Employers Ask About Workers Compensation Claims History?

To minimize risks and mitigate profit to loss ratios, employers must hire the most productive employees and keep those workers’ insurance costs low. For this reason, many employers are hesitant to take on new employees who indicate higher risks in the future.

These concerns are valid. The bottom line is a company is only as profitable and operational as its employees are good and productive. Yet, an employer is bound by federal law in what they can do to determine employee risks for claiming for compensation in advance.

It is illegal to ask about past workers compensation claims or include such claims in the employee background check.

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Workers Compensation Claims History and The Law

1. Understanding Workers’ Rights

The federal Americans with Disabilities Act (ADA) was established in 1990 to govern discrimination against disabled individuals, including unfair treatment and lack of accommodation in the workplace. The Equal Employment Opportunity Commission (EEOC) has been regulating and responding to unequal and unfair treatment in the workplace since 1965. The EEOC includes disabilities in its list of categories protected from discrimination by federal law.

2. Protecting Workers

Many workers are astonished when their claim is denied or pays out much less than they thought it would. This disappointment comes from lack of information about how states regulate workers compensation individually and how employers capitalize on such measures as employee risk classification levels to set payout terms. Employees accept unfair and questionable workers compensation decisions out of fear their employer may retaliate with termination or provide a bad reference for future jobs.

A workers compensation claim for injury at work is every American’s right under federal law. When an injury at work leads to retaliation, intimidation and termination, a worker has the right to consult a personal injury lawyer to help file a lawsuit to recoup losses. They also have the right to exercise their legal rights when a claim is denied.

Knowing a worker’s compensation claim will not affect their future employment keeps workers open and honest with employers before an injury becomes too much for both to handle. This transparency benefits future employers when they are in optimal health.

3. Protecting Employers

An employee’s claim for injury at work in the past can indicate a current disability or future disability based on how severe the injury was. Finding out about this past claims history could put employers at risk to violate the law, as they may unwittingly become biased to an applicant without realizing it. This leaves them vulnerable to a lawsuit.

Once an employee comes on board with a chronic disability or new experience of injury at work, they may be intimidated if their interviewer asked about past injuries and claims history. Furthermore, employees who want to know what do companies check in a background check may be less inclined to report injuries. If they stay silent out of fear and continue to work, the employer is at more risk of an accident or severer injury claim.

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Employer Rights in the Application and Hiring Processes

1. Application Process

Sometimes background information beyond work history tells more about future employees than their resumes. But in the application stage, an employer is only sifting through applications to find candidates who can best perform the job duties. It would be impractical and costly to perform a background check on every attractive candidate.

However, employers do have rights to protect themselves from unfair claims and lawsuits later on.

  • They can ask applicants if they will be able to perform the job’s duties (lifting X number of pounds or tolerating outside conditions, for instance). They must provide space for applicants to explain why they may not, but reserve the right to reject applicants who will be impaired or incapable of the job duties.
  • They have the right to state age and pertinent physical guidelines for the position upfront.
  • They can and should disclose a background check is included in the final hiring stage, and how extensive this check will be. They may be specific about the full data discovered in the background check: past criminal history, credit history, driving record or a combination of these three.
  • They have the right to ask basic questions within the scope of the job, according to state and federal guidelines for their industry. For instance, convicted sex offenders are usually barred from working with small children and most commercial transportation companies prefer not to hire past DUI offenders.

2. Hiring Process

Employers have the right to ask for an employee background check in later and final stages of hiring. Potential employees must be aware of check into their background. An employer may not conduct this background check at the interview and without receiving clearance from the potential candidate. The employer may also conduct drug and substance screenings as appropriate, again with clearance from the potential employee ahead of time.

Once an employee is hired, even an employer’s casual mention or question about past workers compensation claims history can be a violation of the law. If the employee is disabled, the employer must make every effort to accommodate them. If the employee is injured at work, the employer must abide by the state’s workers compensation laws and make every effort to minimize the employee’s losses as a result of the injury.

About author: Riya is a content writer based in Australia. With spending her years working in management, Riya is very delighted to work with aspiring small business owners. She writes for Carter Capner Law, a progressive, innovative and strongly motivated law firm based in Queensland, Australia. Follow her on Twitter.