How Not to Hire Your Next Workers’ Compensation Claim

Selecting the right employee is never easy when browsing through numerous resumes, looking for the best candidate. Even if a candidate has successfully completed the initial hiring process, and a job offer is made, it should be made in the form of a conditional offer of employment. According to the Bureau of Labor and Statistics, 13 percent of all work place injuries occur within 90 days of hire. Of that 13 percent, nearly one quarter of those injuries occur within the first four hours on the job. By understanding and implementing the procedures we are about to discuss, you can play an active part in reducing injuries in the work place.   Workers’ Compensation & The ADA Due to pre-existing medical conditions or limitations, some potential job candidates may be more prone to work place injuries. It is a common misconception that the Americans With Disabilities Act (ADA) prevents employers from asking any medical questions during the hiring process. However, according to the Department of Labor, there are actually three stages of employment – pre-employment, post-offer but pre-placement (after the conditional offer of employment), and employment. During the first and third stages, it is true that you cannot ask any medical questions. However, during the second phase, after a conditional offer of employment is extended, you can ask the applicant to fill out a medical questionnaire and/or submit to a medical examination. If, in medical opinion, the applicant is unfit for the job, you can withdraw the offer. It’s that simple. To avoid hiring your next workers’ compensation claim, there are two key processes that you will need to implement.

The Conditional Offer of Employment

The ADA says that employers cannot require a job applicant to provide medical information or undergo a medical exam until a conditional offer of employment is made. When a conditional offer is made, you are essentially hiring the candidate. However, the employment is conditioned upon the candidate being physically able to perform the essential job duties of the position with reasonable accommodations for any physical or mental disability. The only way an offer may be withdrawn prior to the effective date of employment is if, in medical opinion, the candidate will be unable to perform the job duties safely with reasonable accommodations. If reasonable accommodations can be made, you must make them.

The Medical Questionnaire/Exam

After you extend a conditional offer of employment, it is time to perform a medical screening of the candidate. Keep in mind that you can only require a candidate to undergo an exam if the same is required for all new employees in similar jobs. Allow medical professionals to screen a hire before they start the job to verify that they are able to perform the physical demands of the job for which they were hired. If information emerges from the screening that the candidate will not be able to perform the job duties safely, even with a reasonable accommodation, then and only then can you withdraw the offer of employment.

The examiner should be provided with a detailed job analysis in order to assess whether the candidate is capable of performing that job. The examination should be tailored to the job for which the candidate was hired. The exam should also include an initial drug screen, if your company has a drug policy in place. Once the exam is complete, the physician will either approve or disapprove the candidate for the position and should list any accommodations necessary for the candidate to meet the physical demands of the job.What is A Reasonable Accommodation? According to the EEOC, “An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose undue hardship on the employer’s business”. Undue hardship means that the accommodation would be too difficult or too expensive to provide, in light of the employer’s size, financial resources and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost, nor does an employer have to provide the exact accommodation the employee or job applicant wants. If more than one accommodation works, the employer may choose which one to provide. An employer is not required to lower production standards to make an accommodation, nor is an employer obligated to provide personal use items such as hearing aids or glasses. For additional information on this topic, you can follow the link below for guidance from the EEOC for employers on what questions can be asked and how exams can be performed. http://www.eeoc.gov/laws/types/disability.cfm Following a clear and consistent hiring process that includes a conditional offer of employment and post-offer, pre-employment exams, will help to reduce workers’ compensation premiums in the long run. If you need assistance implementing a new program, or updating your existing program, please contact your Loomis Company representative.

If you have additional questions or need assistance, please contact: Diane L. Cameron, Director of Claims Office (610)374-4040 ext. 2318 Mobile (610)413-3191

The Work Comp Insights is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel or an insurance professional for appropriate advice. © 2011 Zywave Inc. All rights reserved.