Last year, in the context of an “Injured worker who lied in medical denied injury compensation” we posted some interesting comments and discussions about the problems injured workers face obtaining a new job because they have suffered a workplace injury, are still suffering the consequences of an injury, or, frankly, simply because they have a history of a workers compensation claim.
…as there may be issues around “liability in scenarios of what if there is aggravation, exacerbation of that injury; or simply the fact that potential new employers prefer “100% healthy” employees and as such are quite discriminatory against injured or impaired workers, and those who have had a prior workcover claim.
While we fully understand that some (former) injured workers may not disclose prior injuries, whether personal or work-related out of fear of having their job application turned down, it is clear from several legal cases that injured workers are better of telling the truth and disclosing even the smallest of injuries/conditions, in the event of a workplace injury….
Thanks to our co-author Trinny, we found out whether a new employer is legitimately allowed to ask a (former) injured worker about their workcover history.
Can a new employer ask an injured worker about their WorkCover history?
According to the SA Ombudsman:
People often tell me (the SA Ombudsman) that when they apply for a job, the application form asks whether they have had a workers compensation claim, and if so, they are required to provide details of their claim history.
Are employers allowed to ask this question and what should a job applicant do if the question appears on the application form?
In my (the SA Ombudsman) view, although it would be against anti-discrimination laws for an employer to refuse a person’s application because the applicant has previously made a claim for workers compensation, there is nothing unlawful about an employer asking the job applicant to provide their WorkCover history.
Questions on a job application form should be relevant to the type of job being considered. A general question about an applicant’s WorkCover history is no more relevant to the job than, say, their marital status or religion. If a decision to grant or refuse the application cannot lawfully be based on the answer to the question, why ask it? If an applicant is asked such a question, he or she would be entitled to respond with, ‘Not Applicable’ or by ruling a line through it.
Instead of asking an applicant about their WorkCover history, a relevant question would be, ‘Are you currently affected by any injury or condition that may impact upon your ability to perform all the duties of the job? If so, please provide details and advise on what measures may be taken to accommodate your injury or condition so that you could perform the job satisfactorily.’ This information is necessary to the employer fulfilling their workplace safety obligations and ensuring that the applicant could undertake the job without endangering themselves or others. An employer can also lawfully refuse to give a job to someone whose physical or mental impairment would render them unable to perform the job.
If such a question is asked, the applicant should provide an accurate answer. A failure to disclose details of an injury that could affect the applicant’s ability to perform the job might lead to disciplinary action or dismissal if, after being given the job, further injury occurs. (and, importantly, as we have seen through various judgments, compensation for a new or further work injury can be denied, if no history was disclosed)