Prior Workers’ Comp Claims – Can You Ask an Applicant?

Q: Are we allowed to ask about an applicant’s previous work-related injuries and prior workers’ comp claims during an interview?

A: No, an employer may not ask about work-related injuries or workers’ compensation history in an interview. Asking about injuries may elicit information about a disability, and under the Americans with Disabilities Act (ADA), you may not ask disability-related questions until after you make a conditional job offer to the applicant. At that point, you may ask these kinds of questions only if you do so for all candidates for the same job and demonstrate that the questions are legitimately job-related and relevant to the needs of the business.

Unlike asking about injuries, we do not recommend asking about workers’ compensation claims even after making a conditional offer. The question would not be job-related or consistent with business necessity, and it is unlawful to retaliate or discriminate against an employee for filing a workers’ compensation claim.

If you’re concerned that an applicant may not be able to do the tasks of the job, you can ask whether they can perform the specific job functions with or without reasonable accommodation. You should not, however, ask whether the employee needs accommodation in an interview as this could reveal that the employee has a disability.

For more information on how GTM advises clients on HR issues, contact us at (518) 373-4111.