Q. Several recent hires have suffered work-related injuries shortly after beginning their employment. As a result, our workers’ compensation premiums have soared. The company’s CEO, in an effort to avoid this problem, has directed that only “careful” workers be hired 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, this standard cannot be applied to exclude members of any protected category—including disabled workers. It may be perceived by a judge or jury 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 their former employers) questions regarding previous workers’ compensation claims. “Enforcement guidance” issued by the EEOC states that questions regarding occupational injuries are disability-related inquiries that are prohibited by the ADA.
A prospective employer can seek this information only after a conditional offer of employment has been extended, and only if the same information is sought from all other applicants in the same job category.
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