|Author||Subject: If employers can't ask about prior WC claims why are they on most apps I fill out|
|Daniel|| Posted At 18:03:21 06/10/2000
In the Workplace http://news.statesmanjournal.com/single_article.cfm?i=8639
Law doesn’t allow medical questions during interview
Question: I’m a manager at an office supply store, and my employees have to load and unload heavy boxes. I do our hiring, and I don’t want to put someone to work if they can’t handle the lifting. So I always ask applicants if they’ve ever had back injuries or if they have any health problems that would prevent them from doing the job. Other managers tell me that those questions are illegal and can get us into trouble.
If that’s true, then how am I supposed to find out if people I hire can do the job? We’re concerned about liability for injuries if we hire someone who’s not physically able to do the work.
Answer: Your fellow managers are correct. You shouldn’t ask about a job applicant’s medical condition or history of injuries — but there are many questions you can ask to determine whether an individual is qualified to work for you.
Oregon civil rights laws on disability and the federal Americans with Disabilities Act prohibit inquiries as to whether a job applicant is disabled or inquiries as to the nature and severity of any medical conditions. So in a job interview, before you’ve extended an offer of employment, you may not ask about the applicant’s back injuries, history of workers’ compensation claims, physical limitations or prescribed medications. And in this “pre-offer” stage, you also should stay away from questions that are likely to elicit medical information.
On the other hand, it’s legal to ask about the applicant’s ability to perform the job. You can explain, for instance, that the job involves moving 40-pound boxes 15 times per day. You can ask the applicant whether she is able to perform that duty, and you can ask her to describe how she has performed similar functions in prior jobs. You also can ask about any special training or qualifications relating to the job duties.
During the interview, you can even have the applicant demonstrate how she would perform the work, as long as that is something you ask of all applicants. If the applicant can perform the task but needs an accommodation, you’re required to make reasonable accommodations.
Before you begin the interview process, it’s invaluable to develop a detailed written job description that lists all the essential functions of the job. This will assist you in formulating good, legal questions pertaining to duties.
Since you’re concerned about liability and worker safety, you may choose to require new employees to pass a “post-offer” physical exam. The disability laws allow you to require a medical exam after you’ve made an offer of employment and before the job duties have begun — as long as you require this of all entering employees in the same job category and store any medical records in a confidential medical file, separate from the employee’s personnel file.
After an employee has begun working, the law permits you to make medical inquiries or require medical exams only if they are job-related and consistent with business necessity.
Oregon law generally requires you to pay the cost of a medical exam, if you require it as a condition of continuing employment.
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