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What Can Employers Ask About Prior Workers’ Comp Claims?

A question that often comes up for workers who have filed workers’ compensation claims in the past is how those claims could affect their future job prospects. The concern is that employers want to avoid the expense of hiring a worker with injury risks or, worse, a history of filing fraudulent claims. They could potentially use a job applicant’s history of workers’ compensation claims to turn the applicant away. Fortunately, federal and state law provide specific limits on how Nevada employers can use a worker’s claims history.

Federal law prohibits disability discrimination

The federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., prohibits employment discrimination on the basis of an applicant’s or employee’s disability. According to guidance from the Equal Employment Opportunities Commission, under the ADA an employer can ask about a job applicant’s disability and prior workers’ compensation claims only after making an initial job offer. An employer also cannot lawfully obtain such information from third parties until after making the initial job offer. A job offer can lawfully be conditioned upon passing a medical examination. Employers are still permitted to require applicants to pass nonmedical agility or strength tests if they are necessary for the job, such as jobs in law enforcement. In each case, such screening must be given to every applicant in the same job category.

Not every work-related injury leads to a disability that is protected by the ADA. The ADA defines “disability” as a physical or mental impairment that substantially limits a major life activity, having a record of such an impairment, or being regarded as having such an impairment (for example, if an employer decides that an injury limits an employee’s ability to work, even if it doesn’t limit the employee’s day-to-day activities). Many workers’ compensation claims will arise from injuries that are not serious enough to meet this standard. On the one hand, this means that non-disability conditions might still come up in the course of a job application process. On the other hand, employers who probe an applicant’s medical history risk uncovering a protected disability before they are legally entitled to know about it.

When prior claims are uncovered, what then?

Once an employer learns about a new hire’s prior workers’ compensation claims, the ADA’s protections continue to apply. However, in some cases an employee’s claims history can be used to justify terminating an employment relationship for a reason other than disability. For example, the history may reveal that the employee has been dishonest during a medical examination. It may also reveal that the employee has filed numerous claims that were rejected, leading an employer to infer that the employee has a tendency to make false claims. In some cases, a history may uncover a condition that prevents the employee from safely doing the job.

Generally speaking, a scrupulous employer will be careful about basing hiring decisions on someone’s workers’ comp claims history. A claim of unlawful discrimination is a potentially expensive and time-consuming problem that is best avoided through well-designed screening practices. For employees, the important thing to remember is that the law limits how employers use workers’ medical information. But medical information can have nonmedical implications.

GGRM assists workers in the Las Vegas area

The law firm of Greenman Goldberg Raby Martinez has handled workers’ compensation cases in Las Vegas for more than 45 years. If you have questions about how your claims history might affect your future employment options, we are here to help. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.