Publications: Ask the Legal Expert - June 2007

What do you suggest to guard ourselves against improper workers' compensation claims (either bogus claims or claims related to previous or other employment)? Can we test employees somehow?

The employer has different rights depending on where the employee is in the hiring process. Pre-offer, an employer cannot make any disability-related inquiries, including inquiries related to workers' compensation (WC) claims and medical examinations, even if the inquiries relate to the employee's ability to do the job.

Once a conditional offer has been made, however, an employer may ask any disability-related inquiries, as long as it does so for all employees hired for the same job category.

If the employer asks disability-related questions and then rejects the employee, however, investigators will closely examine to make sure that no impermissible discrimination has occurred.

Finally, once employment begins. an employer may make disability-related inquiries only if they are job-related and consistent with business necessity.

Once a conditional offer is made, the employer may investigate the employee's workers' compensation claims history by asking the employee or by contacting the industrial commission - again, doing it for all those hired for the same job category.

But that leads to concern about a possible retaliation claim. In general, an employer is prohibited from retaliating against an employee for filing a workers' compensation claim. Some courts have applied this rule even where the claim was filed against a previous employer.

In general, maintaining good working relationships can be your best defense against unwarranted legal claims. By doing so, you will build a loyal employee base, which could become helpful if an employee files a questionable claim.

Reproduced with permission from McKnight's Long-Term Care News.

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