After making a conditional offer, an employer may ask about a person's workers' compensation history in a medical inquiry or examination that is required of all applicants in the same job category.
An employer may not require an applicant to have a medical examination because a response to a medical inquiry (as opposed to results from a medical examination) discloses a previous work-related injury, unless all applicants in the same job category are required to have the examination.
Whether an injured worker is protected by the Americans With Disabilities (ADA) will depend on whether or not the person meets the ADA definition of an "individual with a disability" and "qualified individual with a disability."
The fact that an employee is awarded workers' compensation benefits or is assigned high workers' compensation disability rating, does not automatically establish that this person is protected by the ADA.
Filing a workers' compensation claim does not prevent an injured worker from filing a charge under the ADA. "Exclusivity" clauses in state workers' compensation laws bar all other civil remedies related to an injury that has been compensated by a workers' compensation system. However, these clauses do not prohibit a qualified individual with a disability from filing a discrimination charge with the Equal Employment Opportunity Commission (EEOC) or filing a suit under the ADA if issued a "right to sue" letter by EEOC.
The Americans with Disability Act prohibits you from giving a physical or medical examination to a potential applicant unless a job has been offered to the person. Remember, it is illegal to discriminate against people with a disability. For more information on the ADA, please call the Equal Employment Opportunity Commission at 1-800-669-4000 and The Massachusetts Office on Disabilities at 617-727-7440. See also, the Federal American Disabilities Act website.
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