I have a couple of questions.
- Can you ask an employee in a pre-employment interview if they’ve ever had any workers’ comp claims?
- Can you ask them if they have any health or medical conditions that would affect them in this very physical work?
ANSWER TO QUESTION 1:
I give you a lot of credit for asking. Some HR directors might ask job applicants about workers’ comp claims without realizing they were crossing a line. The problem, of course, is that you can’t factor a job applicant’s physical or mental disability into your hiring decision. Because they solicit information about conditions that may constitute disabilities, questions about workers’ comp claims aren’t allowed during the interview/pre-employment process.
It’s not just workers’ comp claims. Other interview questions that aren’t allowed because they relate to disabilities include asking applicants about:
- Their general health and medical history;
- Previous injuries, illnesses or mental disorders;
- Physical or intellectual limitations;
- How many sick days they’ve taken;
- What medications they use;
- Allergies or predisposition to medical conditions;
- Substance abuse problems;
- Whether they’re seeing a doctor;
- Insurability under benefits plans; and
- Whether they need accommodations.
ANSWER TO QUESTION 2:
Questions about medical limitations are still illegal even if you phrase them so as to relate to job performance. However, there are 3 things you can do when hiring applicants for jobs that are physically demanding:
- Make it clear in the job description, application or ad that the work is strenuous—this should keep people who have physical limitations from applying in the first place;
- When extending a job offer, let applicants know that the employment is contingent upon their passing a job-related medical exam. For example, ask the applicant to sign an acknowledgement with language to the effect:
“I understand that a job-related medical examination is required and that the offer of employment is contingent upon my completing the exam satisfactorily.”
- Administer the exam after the applicant accepts the offer and signs the acknowledgement.
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