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Do's & Don'ts to help avoid hiring a Workers' Comp claim

A recent, nationwide CareerBuilder survey of 2,400 hiring managers revealing outrageous and common mistakes candidates made in job interviews provides a good chuckle. Here are just a few of the blunders:

While the potential for a bad hire is not always so obvious, the Bureau of Labor Statistics (2008) show that over 13% of injuries involving days away from work occur within 90 days of hire. Considering the cost of one Workers' Compensation claim, including the loss of production, 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, the cost benefits of an effective pre-employment evaluation are clear.

Here are some Do's and Don'ts that employers can use to avoid a costly hiring mistake:


  1. Have a well-written, complete job description that includes both the essential and non-essential functions of the job, duties and responsibilities, physical requirements and qualifications for the position.
  2. During the interview process, stay focused on and ask questions related to the applicant's qualifications. Review the essential functions of the job and ask if he/she can perform the duties with or without accommodations. The purpose of an interview is to obtain sufficient job-related information to make an informed employment decision.
  3. Stay away from physical and mental health inquiries. It is illegal to ask an applicant questions that relate to health or medical conditions. However a recent informal discussion letter from the EEOC notes one exception: If an applicant's apparent disability legitimately calls into question his ability to perform a job, the person may be asked how he would perform the job, with or without a reasonable accommodation.
  4. Ask questions that will help assess the applicant's understanding of your company and safety culture.
  5. Interview in teams. It takes practice but gives a broader perspective.
  6. Assess coachability, emotional intelligence, motivation and temperament as well as technical skills as these traits can be more predictive of a new hires' success or failure. A favorite question from our HR That Works! partner, Don Phin, is "What felt unfair to you in your last job?"
  7. Consider predictive behavior and personality testing of the final candidates. It's a matter of position and economics, but can be a valuable tool in avoiding costly hiring mistakes. Standard measures and classifications often miss traits that lead to high-risk behavior.
  8. Check references. While many companies will do no more than verify employment, employment law attorneys strongly advise conducting reference checks. If you choose not to and the employee harms co-workers or the company, the employer could face a claim for negligent hiring. Conducting the reference checks indicates a good-faith effort to assess the applicant. Some tips on conducting reference checks:

    • Have a written policy, outlining procedures
    • Be sure the person conducting the reference check is properly trained to ask appropriate questions
    • Receive at least three professional references from applicants
    • Obtain the applicant's written consent to contact former employers
    • Try to contact by phone as this may draw out more information
    • Document attempts to contact references
  9. Do background checks and drug tests. The number of state and federal laws that govern pre-employment screening seems to grow daily with a current focus on criminal records and credit history. As a result, establishing protocols and consistent practices that comply with the laws can be daunting, but used legally, background checks are an invaluable tool in the hiring process.
  10. Search the Internet and Social Media sites for information about your applicants.
  11. Do ask about medical challenges and require a fit for duty exam only after a conditional job offer. That means every other aspect of the hiring process has to be taken care of first. This requirement must be made of everyone in the same job classification and all candidates who receive a conditional job offer in the same category must take the same examination and respond to the same inquires. All inquiries must be job-related and consistent with business necessity.

    It's best to have the exam done by an occupational medicine physician. Always provide the physician with a copy of the employee's job description including their essential job functions. In general, fitness for duty exams should be limited solely to the medical information necessary to see if the employee is fit for duty. If you find that they have a pre-existing medical condition and you have more than 15 employees, then you are required to have a disability accommodation conversation. One of the best resources is the Job Accommodation Network that does a great job of assisting in that dialogue.


  1. Never just hire to replace a person. It is essential that the person be a good fit for the position.
  2. During the interview process do not ask about illness or disability, prescribed drugs, past medical treatment (such as for addiction or alcoholism).
  3. If an applicant discloses a disability, do not probe. Questions should be limited to whether the applicant can perform the job.
  4. Avoid asking about prior Workers' Compensation claims. It's illegal for an employer to discriminate against someone because of Workers' Compensation claims that they have filed.
  5. Be cautious about questions regarding outside activities. Questions about an applicant's membership in clubs, organizations, or about hobbies, if not job related, can be problematic if they reveal information about protected characteristics.
  6. Avoid all inquiries that may reveal age, such as when an applicant attended or graduated from school because the Age Discrimination in Employment Act makes it illegal to discriminate based on an applicant's age.
  7. As a general rule of thumb, don't ask questions that are not job related.
  8. Even if a history of Workers' Comp claims is found POST OFFER don't assume the offer can be rescinded. There are limited circumstances, such as fraud, inability to perform essential functions with reasonable accommodations, when an offer can be rescinded.
  9. Don't assume you know the law. Professional HR and legal assistance is key in establishing legally compliant and sound employment practices.

Download a copy of the hiring flowchart.