Q. Recently, several employees suffered work-related injuries shortly after we hired them. As a result, our workers’ compensation premiums have soared. The company’s CEO, in an effort to avoid this problem, has directed us to hire only “careful” workers in the future. Is this legal?
A. Perhaps. If the CEO’s direction to hire only “careful” employees refers to selecting those individuals who can safely perform the functions of the position, this job qualification may be defensible. However, there are some legal concerns.
First, you cannot apply this standard to exclude members of any protected category—including disabled workers. A judge or jury might perceive this type of requirement as a pretext for excluding workers that would require reasonable accommodation of a disability.
Second, keep in mind that employers may not ask applicants (or an applicant’s former employer) questions regarding previous workers’ compensation claims.
An “enforcement guidance” issued by the EEOC states that questions regarding occupational injuries are disability-related inquiries prohibited by the ADA.