Last month, we discussed the importance of written job descriptions in the new hire and return-to-work process. Written job descriptions are an important tool to ensure that you clearly establish the responsibilities and physical requirements of the job, and post-offer health questionnaires are another means to determine whether candidates are capable of performing the job. If you present a job description in the pre-hire process, a post-offer health questionnaire will help to ensure that you do not hire someone who could present a risk to themselves or to others in the workplace. Depending on the state in which you are operating, you may be able to give the questionnaire to current employees if you so desire.
In this post, we will go into greater detail about how to implement a post-offer medical questionnaire that will help you to get the important information on your potential new hires without committing any legal violations.
The Benefits of a Health Questionnaire
You cannot ask interviewees about medical problems or disabilities during the application process, so post-offer medical questionnaires are an opportunity to ask about those details so long as they are relevant to the job and its requirements. According to WCSR, a post-offer medical questionnaire gives the employer a window between the issuing of a conditional offer and the day that the employee begins working to make disability-related inquiries. This is not just a means of picking out candidates who are physically unable to perform the job; rather, it helps you to make more informed hiring decisions. It allows the employer and the employee to discuss any medical limitations and concerns about the job to ensure that the job is not a safety hazard. If an employer has doubts about something on the medical questionnaire, he or she has the option to send the prospective employee to the doctor with the job description in order to get a qualified medical opinion on whether the patient would be capable of performing the job.
In addition, in the case that a prospective employee does not disclose an injury or physical limitation during the application process and later attempts to file a workers’ compensation claim relating to said injury or limitation, many states will allow you to deny workers’ compensation benefits if their dishonesty is material to the claim. For example, if the employee does not disclose a shoulder injury and later files a claim about a shoulder injury, you would be able to deny benefits, but if they fail to disclose a shoulder injury and later claim a back injury, they would still be able to continue with their claim.
However, regardless of what you wish to accomplish with post-offer questionnaires, it is incredibly important that you are aware of certain legal boundaries and do not violate any existing laws or regulations.
Precautions to Take
While you may want to ask questions about the employee’s previous health and workers’ compensation information (and are perfectly within your right to do so in most states), it is important that you do not commit any legal violations. Because post-offer health questionnaires contain medical information, you will be bound by HIPAA standards. Remember to keep medical information confidential and in a separate file.
There are also additional restrictions to keep in mind when utilizing health questionnaires. As stated by Employment Law Daily, the U.S. Equal Employment Opportunity Commission (EEOC) specifies the distinction between lawful and unlawful medical queries as established by “the Rehabilitation Act, the Genetic Information Nondiscrimination ACT (GINA), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA).” It is crucial that your questionnaire does not violate the Americans with Disabilities Act (ADA) or any other federal antidiscrimination law. You should not ask the applicant about his or her family medical history or genetic history.
Remember, once you have made a job offer, you are within your right to ask for any information that relates to the employee’s ability to safely perform the job, which does include disabilities and other medical information. You are also within your right to withdraw a conditional offer for medical reasons, so long as the medical information was legally obtained and said information renders the individual unable to perform the essential job functions or causes the individual to be considered a safety hazard.
About Compass RMS
The risk management firm Risk Management, Inc. has specialized in workers’ compensation since 1996, creating the CWCP (Certified Workers’ Compensation Professional) program in 1999 and the P4 process in 2000. We launched our Compass Risk Management platform in 2008 and recently released version 4.0. For more information about our services, give us a call at (888) 519-6690 to speak with one of our consultants.