Q: I recently started working as a manager at a small family-owned business. We have a lot of turnover and I’ve
noticed that of the 10 or so employees we’ve hired since I got here about a third have experienced some type of on-the-job-injury. We’ve later found out this is not their first worker’s comp claim. Is there a way we could ask a question to screen out applicants who have had previous workers’ comp claims?
A: Yes, you can ask the question, but it may not be so easy to screen them out.
When asking, there are two important factors. First, you may only ask after you’ve extended a job offer (post-offer pre-employment). Second, you must treat the information carefully.
The EEOC says “An employer may ask questions about an applicant’s prior workers’ compensation claims or occupational injuries after it has made a conditional offer of employment, but before employment has begun, as long as it asks the same questions of all entering employees in the same job category.”
So once you get the information, how do you use it? For example, if you find a pattern of filing workers’ compensation claims, can you rescind the offer?
Maybe. It’s recommended that an offer may only be withdrawn under very limited circumstances. These situations may include:
Applicant has lied about a workers’ compensation history
Applicant has a history of filing false claims
Past claims demonstrate the applicant is a safety or health threat to himself or others.
But this is not a decision you should undertake on your own. Always check with an HR professional or attorney when rescinding an offer. You’re not quite firing someone, but close: you’re denying employment.
Your best bet if you want to start collecting previous claim information is to enlist the help of your workers’ comp insurance agent who is very likely familiar with the “Post-Offer Medical Questionnaire” and can show you how to use it.
Lastly, you can check out the State of Florida’s online Worker’s Comp Database which is available to the public for free. The database is easy to use and maintains records of all workers’ comp claims in the state.
Whatever you decide to do, make sure you’re following the same process with everyone in the same job category, no exceptions.
Update: A reader (who is a WC judge) sent me this link which provides data on claims that involved litigation, you might check out.
©Copyright Eva Del Rio