Screening Hazards, Smoking Gun

Q: If my employee had a pre-existing condition that worsened on the job, are we still liable for paying workers compensation? Can we screen these folks out during the hiring process?   

-Concerned about Costs

Sacramento, CA 

A: Your workers’ comp policy should cover any portion of your employee’s injury that was caused by, or arose in the course of, work. According to Susan Gard, Information Officer for CA Division of Worker’s Compensation, if this person’s pre-existing condition got worse because of the work he or she was doing—for example, if someone with carpal tunnel from a past job was hired as checker in a grocery store and their injury flared up—your policy might cover some of the injury. However, you would only be responsible for the portion of the injury caused by the work they do for you. This concept is called apportionment. Your second question leads you down a dangerous path. You can’t deny someone an opportunity to work based on disability. That’s discrimination. If you try to do so, you’re likely going to spend a lot of money on lawyers trying to defend your practices.

Q: The other day, I had a telephone interview for a company that was arranged through a recruiter. The interviewer asked me whether I would have a problem working for someone younger than me—later I found out she asked the recruiter the same thing. A week later, the recruiter told me that the company passed on me. Is this a smoking gun for age discrimination?  What action can I take? I don’t want to be blacklisted by the potential employer.  

– Oldie But a Goodie

Menlo Park, CA 

A: Sounds fishy to me, but what you described is not necessarily proof positive of age discrimination. Such comments might indicate age bias, but you’d need to have more information to know whether that bias resulted in your not being hired. (Who got hired? How old were they? Were they better qualified?)

If you wanted to file a charge with the EEOC, they could investigate the selection process and find the answers to those questions. As to being blacklisted, of course it’s illegal to retaliate against someone for filing a charge of discrimination. That doesn’t mean that it doesn’t happen, and when it does happen it may be hard to prove.  Ultimately, the decision to file a charge is yours. If you decide to file a charge, you can do so with the EEOC up to 300 days from the date of discrimination (in this case, when you were told you would not be hired), or up to one year with the California DFEH.  

According to the Bureau of Labor Statistics, 2.3% of full time workers were injured or ill in 2021 and missed work for a median of about three days to recuperate. 

(This article was originally published in the column Watercooler Counsel. It has been included here with minor updates.) 

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