EEOC Provides Guidance on Pre-employment Disability Related Examinations & Questions About Workers’ Comp & Occupational Injuries

When may an employer ask questions about an applicant’s prior workers’ compensation claims or occupational injuries?
An employer may ask questions about an applicant’s prior workers’ compensation claims or occupational injuries after it has made a conditional offer of employment, but before employment has begun, as long as it asks the same questions of all entering employees in the same job category.

When may an employer require a medical examination of an applicant to obtain information about the existence or nature of prior occupational injuries?
An employer may require a medical examination to obtain information about the existence or nature of an applicant’s prior occupational injuries after it has made a conditional offer of employment, but before employment has begun, as long as it requires all entering employees in the same job category to have a medical examination. Where an employer has already obtained basic medical information from all entering employees in a job category, it may require specific individuals to have follow-up medical examinations only if they are medically related to the previously obtained medical information.

Before making a conditional offer of employment, may an employer obtain information about an applicant’s prior workers’ compensation claims or occupational injuries from third parties, such as former employers, state workers’ compensation offices, or a service (like A-Check) that provides workers’ compensation information?
No. At the pre-offer stage, as at any other time, an employer may not obtain from third parties any information that it could not lawfully obtain directly from the applicant.

May an employer ask disability-related questions or require a medical examination of an employee either at the time s/he experiences an occupational injury or when s/he seeks to return to the job following such an injury?
Yes, in both instances, provided that the disability-related questions or medical examinations are job-related and consistent with business necessity. This requirement is met where an employer reasonably believes that the occupational injury will impair the employee’s ability to perform essential job functions or raises legitimate concerns about direct threat. However, the questions and examinations must not exceed the scope of the specific occupational injury and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.

May an employer ask disability-related questions or require a medical examination of an employee with an occupational injury in order to ascertain the extent of its workers’ compensation liability?
Yes. The ADA does not prohibit an employer or its agent from asking disability-related questions or requiring medical examinations that are necessary to ascertain the extent of its workers’ compensation liability. However, the questions and examinations must be consistent with the state law’s intended purpose of determining an employee’s eligibility for workers’ compensation benefits. An employer may not use an employee’s occupational injury as an opportunity to ask far-ranging disability-related questions or to require unrelated medical examinations. Examinations and questions must be limited in scope to the specific occupational injury and its impact on the individual and may not be required more often than is necessary to determine an individual’s initial or continued eligibility for workers’ compensation benefits. Excessive questioning or imposition of medical examinations may constitute disability-based harassment, which is prohibited by the ADA.

If an employee with a disability-related occupational injury requests a reasonable accommodation, may the employer ask for documentation of his/her disability?
Yes. If an employee with a disability-related occupational injury requests reasonable accommodation and the need for accommodation is not obvious, the employer may require reasonable documentation of the employee’s entitlement to reasonable accommodation. While the employer may require documentation showing that the employee has a covered disability and stating his/her functional limitations, it is not entitled to medical records that are unnecessary to the request for reasonable accommodation.

Learn More:
EEOC Enforcement Guidance: Workers’ Compensation and the ADA

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