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Question: Can workers’ compensation information be used in the screening process?

Response & Analysis:

It depends. Under the federal Americans with Disabilities Act (ADA), prior to making a conditional offer of employment, an employer is prohibited from obtaining information about an applicant’s prior workers’ compensation claims or occupational injuries from the applicant or from any third parties, such as former employers, state workers’ compensation offices or a service that provides workers’ compensation information.

There are also many laws on the state level that protect employees from being discriminated against based on workers’ compensation claims. Many of these state laws are even more restrictive than the federal ADA. For example, in Oregon, it is an unlawful employment practice for an employer to discriminate against a worker with respect to hire, tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for under the state’s workers’ compensation statute (or has given testimony under the provisions of those laws).² Similarly, in Connecticut, an employer is prohibited from discharging or in any manner discriminating against an employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him or her under state law.³ In Alaska, an employer may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a workers’ compensation claim.⁴

Thus, it would be a best practice for employers to avoid asking applicants or employers about prior workers’ compensation claims or using this information to make an employment decision. If an employer decides to inquire into prior workers’ compensation claims, the employer must ensure that its policies and practices are in full compliance with both state and federal laws. Further, in most cases, employers will be unable to obtain workers’ compensation information from consumer reporting agencies (CRAs) because many states restrict a CRA’s ability to access such information or prohibit CRAs from reporting such information to an employer that is not permitted to consider it when making an employment decision.

¹ See EEOC Enforcement Guidance: Workers’ Compensation and the ADA, questions 4 & 6, available at http://www.eeoc.gov/policy/docs/workcomp.html.
² O.R.S. § 659A.040(1)
³ C.G.S.A. § 31-290a(a).
⁴ A.S. § 23.30.247

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