Do All You Can to Protect Yourself against Worker’s Comp Claims!

It’s an all too familiar scenario for employers…you have a hard-to-fill position that has been vacant for months. Finally, a seemingly viable candidate presents themselves. You interview, conduct reference checks and after performing the due diligence, you hire. The new employee starts work. Then it happens…within days of starting work your new employee becomes injured on the job and is out on Workers’ Compensation, causing expense and lost production. The question then becomes “WHY did we hire that employee?”

According to Margaret Spence of the Workers’ Comp Gazette, employers often hire based on an unrealistic idea that all they need is a warm body in a position because “anyone” can be trained to do the job. This is the first mistake on the road to a Workers’ Compensation claim. It is essential that each job fit the worker and that each worker fit his or her job. Recent data from the Bureau of Labor Statistics shows that 13% of all workplace injuries occur within 90 days of hire – 23% of those happen within the first 4 hours on the job!

Of course, legitimate Workers’ Compensation claims do happen, regardless of precautions taken, but what about the troublesome employee who either fails to observe safety in the workplace, or worse yet, exploits the Workers’ Compensation system for financial gain? There are legal steps employers can take in the pre-employment and post-employment process to mitigate the risk of making a bad hire from a Workers’ Compensation standpoint:

Ensure the job description includes not only the essential functions of the job, but also the non-essential functions, physical requirements and qualifications for the position. This is a hallmark of employers with effective injury management programs.

Ask the candidate how they would perform specific job tasks. Pre-employment skills testing can include a “fit-for-duty” test (NOT a medical exam) involving the duties of the job, if the employer can show a compelling need to do so. For example, you may require the candidate to climb a ladder, lift a box, etc. Now is the time to observe for the ability to do these tasks as well as identify improper body mechanics. If your company requires "fit-for-duty exams" to avoid hiring a Workers' Comp claim, they should be structured so that they comply with privacy laws and the American with Disabilities Act (ADA). Employers are also limited in the scope of allowable inquiries before making a conditional job offer; for example, employers must not ask about illness or disability, prescribed drugs, past medical treatment (such as for addiction or alcoholism), or prior WORKERS’ COMP claims.

After a conditional job offer, an employer can ask about an employee's Workers' Comp history, sick leave usage, medical challenges, etc. as well as require a medical examination - provided that all candidates who receive a conditional job offer in the same category are required to take the same examination and/or respond to the same inquiries. Such inquiries must be job related and consistent with business necessity. If the employer chooses not to hire someone based on their medical history, the decision must be directly related to their inability to perform the job up to a certain standard or because in doing so, they may harm themselves or others. Under the ADA, employers with 15 or more employees are required to consider job accommodations. It is recommended that medical inquiries be done by a physician and that results are considered confidential medical records and be treated as such.

Training, training, training – according to Spence, “Employees should be provided with appropriate safety training and the safety rules that apply to their job and their work areas. Employers, who have successful injury prevention programs, create a training matrix that outlines the minimum safety training required for all positions.” The importance of not only training to perform the tasks of the job, but training in all safety aspects of the job cannot be overestimated. Additionally, training doesn’t end after the employee learns the duties and safety precautions as a new employee. Any time job duties, equipment, or safety rules change or are updated, employees must be trained on the changes. Refresher training on safety rules should be conducted regularly as well.

Spence notes that employers must recognize that bad hiring decisions and improper training programs can increase the likelihood that an employee will be injured. Spend the money to train your employees correctly, from the beginning. If you evaluate the overall cost of one Workers’ Compensation claim, including: the loss of manpower, the administrative cost to manage an injured employee, the Workers’ Compensation premium cost and the overtime to cover jobs that would have been done by the injured worker—you will see the cost benefits of integrating an effective pre-employment evaluation and safety training programs into your workplace.

Thanks to Laura Littlecott, PHR for contributing this article. Laura is an HR Consultant with strategic HR, inc. in Cincinnati, Ohio. She can be contacted at LauraL@strategicHRinc.com.

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