Workers' Compensation and the ADA--Medical Inquiries

An employer may ask questions about an applicant's prior workers' compensation claims or occupational injuries if these questions are asked of all entering employees in the same job category. These questions may only be asked after a conditional offer of employment has been made and before employment has begun.

Medical Examinations Concerning 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 the employer has made a conditional offer of employment, but before employment has begun, as long as all entering employees in the same job category are required to have a medical examination. When an employer has already obtained basic medical information from all entering employees in a job category, the employer may require specific individuals to have follow-up medical examinations only if the examination is medically related to the previously obtained medical information.

Information from Third Parties
At the pre-offer stage of the employment process, as at any other time, an employer may not obtain any information from third parties that it could not lawfully obtain directly from the applicant. Before making a conditional offer of employment, an employer may not 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 that provides workers' compensation information
 
Questions and Examinations Regarding Current Occupational Injuries
When an employee experiences an occupational injury, an employer may ask disability related questions and/or require a medical examination provided they 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 This same criteria applies to employees who are seeking to return to work after an occupational injury.

Medical Inquires and Workers’ Compensation Liability
The ADA does not prohibit an employer or its agent from asking disability-related questions or requiring medical examinations that are necessary to determine 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, the employer may ask for documentation of his/her disability. If an employee with a disability-related occupational injury requests a reasonable accommodation and the need for the accommodation is not obvious, the employer may require reasonable documentation of the employee's entitlement to the accommodation. While the employer may require documentation showing that the employee has a covered disability and stating his/her functional limitations, the employer is not entitled to medical records that are not specifically related to the request for reasonable accommodation.  

Confidentiality of Medical Information
The ADA's confidentiality requirements apply to medical information regarding an applicant's or employee's occupational injury or workers' compensation claim.  Medical information regarding an applicant's or employee's occupational injury or workers' compensation claim must be collected and maintained on separate forms and kept in a separate medical file along with other information required to be kept confidential under the ADA. An employer must continue to keep medical information confidential even if someone is no longer an applicant or an employee.

The ADA allows disclosure of this information only in the following circumstances:  

Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations.  

First aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment.  

Government officials investigating compliance with the ADA must be given relevant information on request.

Employers may give information to state workers' compensation offices, state second injury funds, and workers' compensation insurance carriers in accordance with state workers' compensation laws.

Employers may use the information for insurance purposes.