Regardless of your state’s workers’ compensation laws, covered employers must always keep the Americans with Disabilities Act (ADA) in mind when wrestling with whether to ask job applicants about prior workers’ compensation claims.
For example, last month, the Tennessee Supreme Court unanimously held that no cause of action existed for a job applicant under the state’s workers’ compensation act for retaliatory failure to hire. See Yardley v. Hospital Houskeeping Systems, Inc. In that case, the plaintiff was injured in 2010 and began receiving workers’ compensation benefits. Two years later, she was released to full duty, and she applied for a job with the defendant (who did not employ her when she suffered the injury in 2010). The defendant refused to hire her though, with its Division Vice President even stating in an e-mail that plaintiff’s shoulder was hurting her again and “bringing her on board with [the defendant] would seem to be a Workers’ Comp claim waiting to happen.”
The plaintiff sued the defendant for retaliatory failure to hire, but the Tennessee Supreme Court held that no such claim existed for a job applicant under the state’s workers’ compensation law because no employment relationship ever existed between the plaintiff and defendant. With the decision, Tennessee joined several other states, including Kentucky, Ohio, Oklahoma, Iowa, and Washington, who hold that job applicants have no claim for retaliatory failure to hire.
Employers may rejoice, but before adding a question to the employment application asking for workers’ compensation history, covered employers must be ever mindful of the ADA. The federal law prohibits employers with 15 or more employees from asking applicants disability-related inquiries or requiring medical examinations before conditionally offering employment. 42 U.S.C. § 12112(d)(2). Asking an applicant about job-related injuries or workers’ compensation history is a prohibited disability-related inquiry, at least according to the EEOC, because these types of questions directly concern the seriousness of an impairment. As a result, asking an applicant about their workers’ compensation history is most likely an ADA violation. To add insult to injury, if the applicant sues the employer, the applicant would not have to prove that he or she was disabled to prevail.
As a result, although an applicant for a job in Tennessee and other states has no claim against a prospective employer for retaliatory failure to hire under the workers’ compensation law, covered employers can still face liability under the ADA for inquiring about an applicants’ workers’ compensation history.
