Employers sometimes ask whether they can screen job applicants for prior workers’ compensation claims.

Often, employers simply want information about previous claims in an effort to prevent reinjury. Even if this is the case, asking job candidates about past work injuries, disabilities or medical histories is illegal under the federal Americans with Disabilities Act (ADA).

At the same time, most states have anti-discrimination laws prohibiting such screenings. This includes human rights and fair employment laws in Minnesota, Iowa, Nebraska, South Dakota, Kansas and Wisconsin.

Employer can ask applicants about ability to perform required tasks

While employers are barred from asking applicants about prior workers’ compensation claims, they are permitted to request other types of information.

To begin, a prospective employer can ask in an interview or on a job application whether the applicant can perform the essential functions of the position with or without reasonable accommodation.

The employer can also ask the applicant to undergo a pre-employment physical examination after a conditional job offer has been made, as long as an examination is required of all applicants in the same category and it only tests for essential job-related capabilities.

If you require pre-employment exams in your organization, a written job description can be a valuable tool to the examiner.

Be sure to consult your employment law attorney to ensure your hiring practices comply with the laws in your area.

One final tip: Any records developed as part of the pre-employment process are required to be kept in a separate file from other personnel file information.

For more information, see SFM’s “Screening job applicants for prior workers' compensation claims” Legal Advisory.

This is not intended to serve as legal advice for individual fact-specific legal cases or as a legal basis for your employment practices.

Originally posted May 2019