9.5 Do the ADA’s Pre–Employment Inquiry and Confidentiality Restrictions Prevent an Employer from Filing Second Injury Fund Claims?

Technical assistance manual on the employment provisions (Title I) of the Americans With Disabilities Act

IX. WORKERS' COMPENSATION AND WORK-RELATED INJURY

Most states have established "second injury" funds designed to remove financial disincentives in hiring employees with a disability. Without a second injury fund, if a worker suffered increased disability from a work–related injury because of a pre–existing condition, the employer would have to pay the full cost. The second injury fund provisions limit the amount the employer must pay in these circumstances, and provide for the balance to be paid out of a common fund.

Many second injury funds require an employer to certify that it knew at the time of hire that the employee had a pre–existing injury. The ADA does not prohibit employers from obtaining information about pre–existing injuries and providing needed information to second injury funds. As discussed in Chapter VI, an employer may make such medical inquiries and require a medical examination after a conditional offer of employment, and before a person starts work, so long as the examination or inquiry is made of all applicants in the same job category. Although the ADA generally requires that medical information obtained from such examinations or inquiries be kept confidential, information may be submitted to second injury funds or state workers’ compensation authorities as required by state workers’ compensation laws.