James F. Mahoney, Attorney
Commentaries
 
     

July 2011

Employment Applications and Loss Reductions

If the individual is screened out for safety reasons, you must be able to demonstrate that he or she posed a "direct threat" that the risk could not be reduced through reasonable accommodation

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A first line defense in risk avoidance is the hiring process. The key to that is the job application.

Look it over to be sure it complies with applicable laws; that you obtain the information you need; and applicants know that you have rights when they're completing the application.

We know not to ask the date of high school graduation since it’s fairly easy to deduce the applicant’s age. And we can’t ask questions that could expose disabilities or certain criminal history.

But there are questions that remain fair and valid and will provide information that may prevent employment, Comp or related claims. You should have your application reviewed to include helpful questions about actual graduation as opposed to mere attendance; disclosure of any involuntary terminations; disclosure that all answers were fully and accurately answered; and the consequences of misrepresentation.

The application should mention that after a conditional employment offer is made you may ask disability-related questions and require medical examinations as long as this is done for all entering employees in that job category.

If the individual is screened out for safety reasons, you must be able to demonstrate the individual posed a "direct threat," i.e., a significant risk of substantial harm to him/her or others, and that the risk could not be reduced below a direct threat through reasonable accommodation.