Only injured workers who meet the ADA's definition of an "individual with a disability" will be considered disabled under the ADA, regardless of whether they satisfy criteria for receiving benefits under workers' compensation or other disability laws. A worker also must be "qualified, " with or without reasonable accommodation, in order to be protected by the ADA. Work-related injuries do not always cause physical or mental impairments severe enough to "substantially limit" a major life activity. Many on-the-job injuries cause temporary impairments which heal within a short period of time with little or no long-term or permanent impact. Therefore, many injured workers who qualify for benefits under workers' compensation or other disability benefits laws may not be protected by the ADA. An employer must consider work-related injuries on a case-by-case basis to know if a worker is protected by the ADA. Note that some states may have different recognition of "disability," "temporary disability" and who might receive workers' compensation benefits. It likely would be beneficial to speak with the state Department of
An employer may not inquire into an applicant's workers' compensation history before making a conditional offer of employment. After making a conditional job offer, an employer may inquire about a person's workers compensation history in a medical inquiry or examination that is required of all applicants in the same job category. However, even after a conditional offer has been made, an employer cannot require a potential employee to have a medical examination solely because they learn of past workers' compensation injuries. Also, an employer may not base a decision to hire based on an applicant's workers' compensation history. However, an employer may refuse to hire, or may discharge an individual, who is not currently able to perform a job without posing a significant risk of substantial harm to the health or safety of the individual or others, if the risk cannot be eliminated or reduced by reasonable accommodation.
An employer may refuse to hire or may fire a person who knowingly provides a false answer to a lawful post-conditional job offer inquiry about his or her condition or workers' compensation history.
An employer also may submit medical information and records concerning employees and applicants (obtained after a conditional job offer) to state workers' compensation offices and "second injury" funds without violating ADA and HIPAA confidentiality requirements.