Can a Texas employer get an applicant's workers' comp injury history before a job offer?

Plain-English summary

The Texas Workers' Compensation Commission asked whether a new federal law clashed with a Texas statute it had to follow. Under article 8308-2.33 of the Texas Workers' Compensation Act, a prospective employer that carried workers' compensation insurance could get information about a job applicant's prior injuries from the commission, with the applicant's written authorization. If the applicant had filed two or more general injury claims in the prior five years, article 8308-2.34 required the commission to release that history. The question was whether the federal Americans with Disabilities Act of 1990 (ADA) made it unlawful for the commission to do so.

The Attorney General's answer turned on the difference between the pre-offer and post-offer stages of hiring. The ADA's subchapter I (its employment title), as interpreted by the EEOC, prohibits a covered employer from making pre-offer inquiries about whether an applicant has a disability. The EEOC had read that bar to cover questions about an applicant's workers' compensation history, and not just questions put to the applicant: an employer also could not ask a previous employer or "other source" for information it could not ask the applicant directly. So the opinion concluded the ADA prohibits a covered employer from contacting the commission for an applicant's prior-injury information before extending a job offer. After a conditional offer, by contrast, the ADA allows medical inquiries (including about prior injuries and workers' compensation claims) if they are required of all entering employees in the same job category, subject to confidentiality and limits on how the results may be used.

The harder question was whether the commission itself, as opposed to the employer, was barred from releasing the information. The opinion found nothing in subchapter I that directly forbids the commission, because subchapter I reaches only "covered entities" (employers, employment agencies, labor organizations, and joint labor-management committees), not a state agency providing records. But subchapter II of the ADA, which bars disability discrimination in public services, uses broad language, and the opinion thought a court might read it to stop a public entity like the commission from aiding a private employer in discriminating. Either way, on preemption the opinion reached a firm conclusion: where a state law actually conflicts with federal law so that a party cannot comply with both, the federal law controls. Because the Texas statute required the commission to release pre-offer injury information that the ADA forbade covered employers to obtain, the two conflicted, and the ADA preempted the Texas Workers' Compensation Act to that extent. The commission therefore could not lawfully release applicants' prior-injury information at the pre-offer stage to ADA-covered employers.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The ADA has been amended since 1992, the EEOC and Justice Department regulations have been revised, and the Texas Workers' Compensation Act has been recodified into the Labor Code, so confirm the current federal and state law before relying on anything stated here.

Background and statutory framework

Article 8308-2.33 entitled a prospective employer with workers' compensation coverage to obtain an applicant's prior-injury information from the commission with the applicant's written authorization, and article 8308-2.34 required the commission to release that information when the applicant had made two or more general injury claims in the preceding five years (a "general injury" being one other than to a digit, limb, or member, an inguinal hernia, or vision or hearing loss).

On the federal side, subchapter I of the ADA prohibits disability discrimination in employment by covered entities. 42 U.S.C. § 12111(2). Section 12112(a) bars discrimination against a qualified individual with a disability, and section 12112(c)(2)(A) provides that, except for certain post-offer entrance examinations, a covered entity "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." The EEOC, authorized to issue regulations under section 12116, promulgated 29 C.F.R. part 1630 and published interpretive guidance, including the ADA Handbook (1991) and the ADA Technical Assistance Manual (1992). Those rules bar pre-offer medical examinations and inquiries except inquiries into an applicant's ability to perform job-related functions, 29 C.F.R. §§ 1630.13(a), 1630.14(a), and allow post-offer examinations and inquiries if all entering employees in the same job category are subject to them, 29 C.F.R. § 1630.14(b).

The opinion relied heavily on the EEOC's guidance that the pre-offer bar covers workers' compensation history and reaches third-party sources. The Technical Assistance Manual stated that before a conditional offer, an employer may not request information about an applicant from a previous employer, family member, or other source that it could not request of the applicant, and specifically may not ask previous employers or other sources about an applicant's workers' compensation history. From that, the opinion concluded the ADA prohibits an employer from contacting the commission for an applicant's prior injuries before making an offer. At the post-offer stage, the same guidance permitted such inquiries if applied to all entering employees in the same job category, with the caveat that the ADA limits how the results may be used: an employer may withdraw a conditional offer only where the reasons are job-related and consistent with business necessity, or to avoid a "direct threat" to health or safety, and only where no reasonable accommodation would allow the person to perform essential functions without significant risk or undue hardship. The opinion noted, citing the guidance, that an offer cannot be withdrawn based on speculation that a disability may indicate a greater risk of future injury, absenteeism, or insurance costs, though a history of multiple denied claims could support a non-disability-based fraud concern.

On whether the commission could release the information, the opinion read subchapter I to reach only the covered entities listed in section 12111(2), not the commission. But subchapter II, which bars excluding a qualified individual with a disability from the services, programs, or activities of a "public entity" (which includes state agencies like the commission under section 12131(1)), uses broad language. The opinion observed that the Justice Department, authorized under section 12134, had read section 12132's prohibition broadly (citing 29 C.F.R. § 35.130), and concluded a court might find subchapter II bars the commission from aiding a private employer's pre-offer discrimination.

Finally, on preemption, the opinion applied English v. General Electric Co., 110 S. Ct. 2270, 2275 (1990): state law is preempted to the extent it actually conflicts with federal law, including where it is impossible to comply with both. Because the Texas statute required the commission to release pre-offer injury information that the ADA forbade covered employers to obtain, compliance with both was impossible, so the ADA preempted the Texas Workers' Compensation Act to that extent, and the commission could not lawfully release pre-offer injury information to covered employers. The opinion noted the ADA's phased coverage (employers with 25 or more employees from July 26, 1992, dropping to 15 or more on July 26, 1994) and that section 12202 abrogates state Eleventh Amendment immunity for ADA violations.

Common questions

Could an employer get an applicant's workers' comp injury history before offering the job?
No, not an ADA-covered employer. The opinion concluded the ADA, as interpreted by the EEOC, bars a covered employer from obtaining that history before a conditional job offer, including from the commission.

Could the commission still hand over the records before an offer?
No, to the extent the requester was a covered employer. The opinion concluded the ADA preempted the Texas statute's pre-offer disclosure requirement, so the commission could not lawfully release that information to covered employers before an offer.

Was disclosure ever allowed?
Yes, at the post-offer stage. After a conditional offer, an employer could obtain prior-injury information if it asked about all entering employees in the same job category, subject to confidentiality and limits on using the results.

Did the ADA stop an employer from ever acting on injury history?
It limited it. An employer could withdraw a conditional offer only for job-related, business-necessity reasons or to avoid a direct threat to health or safety, and not based on speculation about future injuries, absenteeism, or insurance costs.

Did this apply to every Texas employer?
No. The ADA applied to employers with 25 or more employees from July 26, 1992, and to employers with 15 or more from July 26, 1994.

Citations

• V.T.C.S. art. 8308-2.33; art. 8308-2.34
• 42 U.S.C. § 12101 et seq. (Americans with Disabilities Act); §§ 12102(2), 12111, 12112, 12116, 12131(1), 12132, 12134, 12202
• 29 C.F.R. pt. 1630, §§ 1630.13(a), 1630.14(a), 1630.14(b); 29 C.F.R. § 35.130
• EEOC, ADA Handbook (1991); EEOC, ADA Technical Assistance Manual (1992)
• English v. General Electric Co., 110 S. Ct. 2270 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0124
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0124.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

June 9, 1992

Mr. Todd K. Brown
Acting Executive Director
Texas Workers' Compensation Commission
Southfield Building, 4000 South IH-35
Austin, Texas 78704-7491

Opinion No. DM-124

Re: Whether the federal Americans with Disabilities Act precludes the Workers' Compensation Commission from disclosing job applicants' prior work injuries to prospective employers pursuant to the Texas Workers' Compensation Act, article 8308-2.33, V.T.C.S. (RQ-243)

Dear Mr. Brown:

You ask whether the Workers' Compensation Commission (the "commission") lawfully may comply with a provision of the Texas Workers' Compensation Act, article 8308-2.33, V.T.C.S., which requires the commission to release information to employers about employment applicants' prior injuries, in light of certain prohibitions in the federal Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. § 12101 et seq.

Article 8308-2.33(a) provides that a prospective employer who has workers' compensation insurance coverage is entitled to obtain information on an employment applicant's prior injuries from the commission with the applicant's written authorization. See also V.T.C.S. art. 8308-2.33(b)-(e) (setting forth requirements for a valid request and procedures for release). Provided that an inquiry complies with article 8308-2.33, article 8308-2.34 requires the commission to release information to the prospective employer regarding an applicant's prior injuries if the commission finds that the applicant has made two or more general injury claims in the preceding five years.[1]

[1] A "general injury" means an injury other than an injury to a digit, limb or member, an inguinal hernia, or vision or hearing loss. V.T.C.S. art. 8308-2.34(c).

Subchapter I of the ADA, which generally prohibits discrimination on the basis of disability[2] in employment, applies to employers,[3] employment agencies, labor organizations, and joint labor-management committees. 42 U.S.C. § 12111(2). Section 12112(a) of the ADA prohibits covered entities from discriminating "against a qualified individual with a disability[4] because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." Section 12112(c) provides that with the exception of certain post-offer employment entrance examinations, a covered entity "shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability." Id. § 12112(c)(2)(A).

[2] The ADA defines "disability" as (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. 42 U.S.C. § 12102(2).

[3] The term "employer" is specifically defined at 42 U.S.C. § 12111(5)(A). The effective date of subchapter I is July 26, 1992. Thus, while the ADA ultimately will apply to employers with 15 or more employees, from July 26, 1992 through July 25, 1994, it will apply only to employers with 25 or more employees. The following entities are excluded from the definition of employer: the United States, corporations wholly owned by the government of the United States, Indian tribes, and bona fide private membership clubs that are exempt from taxation under section 501(c) of the Internal Revenue Code of 1986. Id. § 12111(5)(B).

[4] The term "qualified individual with a disability" is defined as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this title, consideration shall be given to the employer's judgment as to what functions of a job are essential and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8).

The United States Equal Employment Opportunity Commission (the "EEOC") has promulgated regulations interpreting subchapter I of the ADA, see 29 C.F.R. part 1630,[5] and also has published interpretative guidance to the act and regulations, see, e.g., EQUAL EMPLOYMENT OPPORTUNITY COMM'N & U.S. DEP'T OF JUSTICE, AMERICANS WITH DISABILITIES ACT HANDBOOK (1991) (the "ADA HANDBOOK"); EQUAL EMPLOYMENT OPPORTUNITY COMM'N, A TECHNICAL ASSISTANCE MANUAL ON THE EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT (1992) (the "ADA TECHNICAL ASSISTANCE MANUAL"). The EEOC regulations specifically prohibit covered entities from conducting or requiring a medical examination of an applicant or making inquiries as to whether an applicant is an individual with a disability or as to the nature or severity of the disability. 29 C.F.R. § 1630.13(a). The regulations provide that a covered entity may make pre-employment inquiries only "into the ability of an applicant to perform job-related functions." 29 C.F.R. § 1630.14(a). The regulations also provide that covered entities

may require a medical examination (and/or inquiry) after making an offer of employment to a job applicant and before the applicant begins his or her employment duties, and may condition an offer of employment on the results of such examination (and/or inquiry), if all entering employees in the same job category are subjected to such an examination (and/or inquiry), regardless of disability.

29 C.F.R. § 1630.14(b). In sum, the EEOC has interpreted the ADA to prohibit all pre-offer medical examinations and inquiries, except those inquiries which pertain to the ability of an applicant to perform job-related functions, and to allow post-offer medical examinations and inquiries if all entering employees in the same job category are subject to the examination or inquiry.

[5] Section 12116 of the ADA authorizes the EEOC to issue regulations "to carry out" subchapter I.

The EEOC has interpreted the prohibition on pre-offer inquiries also to prohibit inquiries about applicants' workers' compensation history. ADA HANDBOOK at I-70; ADA TECHNICAL ASSISTANCE MANUAL pt. IX, § 9.1. Furthermore, it has clearly stated that the ADA prohibits a prospective employer not only from making such inquiries of an applicant but also of any other person or source: "[b]efore making a conditional job offer, an employer may not request any information about a job applicant from a previous employer, family member, or other source that it may not itself request of the job applicant." ADA TECHNICAL ASSISTANCE MANUAL pt. V, § 5.5(g), at V-16; see also id. at V-17 ("[b]efore making a conditional offer of employment, an employer may not ask previous employers or other sources about an applicant's . . . workers' compensation history . . ."). Therefore, we conclude that the ADA, as it has been interpreted by the EEOC, prohibits an employer from contacting the commission to obtain information about an applicant's prior injuries[6] before making the applicant an offer of employment.

[6] We note that not all prior injuries necessarily will rise to the level of a "disability" as defined by the ADA. Compare supra note 1 with supra note 2. Given the ADA's broad, subjective definition of "disability," however, we do not believe that a clear distinction can be made between injuries about which employers may or may not lawfully inquire. Moreover, the EEOC seems to have interpreted the ADA to prohibit all pre-offer inquiries about workers' compensation history, regardless of the severity of the prior injuries.

We do not believe, however, that the ADA prohibits employers from contacting the commission to obtain information about applicants' prior injuries at the post-offer stage. The ADA TECHNICAL ASSISTANCE MANUAL expressly states that employers may ask questions about previous injuries and workers' compensation claims at the post-offer stage, provided that such questions are asked of all entering employees in the same job categories. ADA TECHNICAL ASSISTANCE MANUAL pt. VI, § 6.1, at VI-1, VI-6, pt. IX, §§ 9.1, 9.3, at IX-3; see also supra note 6. Neither the EEOC regulations nor the ADA HANDBOOK or ADA TECHNICAL ASSISTANCE MANUAL suggest that employers are prohibited from obtaining information from sources other than the applicant at the post-offer stage. Indeed, the ADA TECHNICAL ASSISTANCE MANUAL suggests that, subject to confidentiality strictures on the use of such information, the ADA gives employers wide latitude in making inquiries at the post-offer stage. Id. pt. VI, § 6.5 ("the ADA does not limit the nature or extent of post-offer medical examinations and inquiries").[7] Thus, we conclude that the ADA does not prohibit an employer from obtaining information from the commission about an entering employee's prior injuries after the employer has made an offer of employment, provided that such inquiries are made about all entering employees in the same job categories.[8]

[7] We also note that the Texas Workers' Compensation Act requires employers to obtain written authorization from applicants before requesting information from the commission. V.T.C.S. art. 8308-2.33(d).

[8] This office has received a brief contending that section 12112(c)(3) of the ADA permits only post-offer medical examinations and does not permit post-offer inquiries. This argument is not consistent with the EEOC's interpretation of the ADA. See 29 C.F.R. § 1630.14(b); see also supra note 6. The brief also contends that the EEOC interpretive guidance to the rules provides that employers may submit information about employees' workers' compensation histories to state workers' compensation agencies but expressly forbids such agencies from communicating such information to employers. See ADA HANDBOOK at I-73-74 (Interpretive Guidance to 29 C.F.R. § 1630.14(b)). We do not believe this is the case. As the ADA TECHNICAL ASSISTANCE MANUAL makes clear, the EEOC has attempted to clarify that communications by employers to state workers' compensation agencies regarding employees' workers' compensation histories are excepted from the general confidentiality stricture governing post-offer medical examinations and inquiries contained in section 12112(c)(3)(B) of the ADA in order to allow employers to participate in state "second injury" funds. See ADA TECHNICAL ASSISTANCE MANUAL pt. IX, § 9.5; 29 C.F.R. § 1630.14(b)(1) (requiring that post-offer medical examinations and inquiries be kept confidential). We do not believe that the EEOC's interpretive guidance addresses the communications at issue here. We note, however, that section 12112(c)(3)(B) of the ADA appears to require employers to keep confidential the information they receive from the commission.

Notwithstanding the foregoing, we stress that the ADA limits how an employer may use such information. As the ADA TECHNICAL ASSISTANCE MANUAL explains, if a conditional job offer is withdrawn because of the results of an examination or inquiry, an employer must be able to show that:

the reasons for the exclusion are job-related and consistent with business necessity, or the person is being excluded to avoid a "direct threat" to health or safety; and that

no reasonable accommodation was available that would enable this person to perform the essential job functions without a significant risk to health or safety, or that such an accommodation would cause undue hardship.

ADA TECHNICAL ASSISTANCE MANUAL pt. VI, § 6.4.[9] An employer cannot withdraw a conditional job offer absent a significant, current risk of substantial harm to health or safety. Id. at VI-8. The results of a medical inquiry or examination may not be used to disqualify persons who are currently able to perform essential functions of a job because of fear or speculation that a disability may indicate a greater risk of future injury, or absenteeism, or may cause future workers' compensation or insurance costs. Id.[10]

[9] Section 12111(3) of the ADA defines "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."

[10] The ADA TECHNICAL ASSISTANCE MANUAL expressly notes, however, that it might be permissible for an employer to withdraw an offer from an employee in the following circumstances: a workers' compensation history indicates multiple claims in recent years which have been denied. An employer might have a legitimate business reason to believe that the person has submitted fraudulent claims. Withdrawing a job offer for this reason would not violate the ADA, because the decision is not based on disability. ADA TECHNICAL ASSISTANCE MANUAL pt. VI, § 6.4, at VI-7; see also id. pt. IX, § 9.8.

You ask not only whether an employer lawfully may obtain information about applicants' prior injuries from the commission, but also whether the commission lawfully may release such information to employers given the strictures of the ADA. We find nothing in subchapter I of the ADA which expressly forbids the commission from releasing information about applicants' prior injuries. Section 12111(2) of subchapter I of the ADA defines "covered entit[ies]" as employers, employment agencies, labor organizations, and joint labor-management committees. Section 12112 prohibits discrimination in employment. Subchapter I does not appear to apply to persons and entities other than those listed in section 12111(2) or to conduct other than that described in section 12112.

Subchapter II of the ADA, which prohibits discrimination in public services, provides as follows:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132 (emphasis added). The term "public entity" includes state and local governments and departments, and agencies of state and local governments such as the commission. Id. § 12131(1).[11] At first glance, section 12132 appears to prohibit governmental entities from discriminating on the basis of disability in providing and administering public services, but does not appear to be applicable to the kind of conduct at issue here by which a public entity might indirectly aid a private entity or person in discriminating in employment. It is possible, however, that a court might interpret the broad language italicized above to prohibit public entities such as the commission from aiding a private entity or person in discriminating on the basis of disability. We also note that in promulgating rules interpreting this division of subchapter II of the ADA, the United States Department of Justice has interpreted the section 12132 prohibition broadly. See 29 C.F.R. § 35.130.[12] Thus, we believe that a court applying subchapter II might conclude that section 12132 prohibits the commission from releasing information to employers about applicants which employers are prohibited from obtaining under subchapter I of the ADA.

[11] Section 12202 of the ADA provides in part that a state "shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."

[12] Section 12134 of the ADA authorizes the United States Attorney General to promulgate regulations to implement division A of subchapter II.

Finally, you ask whether the ADA preempts the Texas Workers' Compensation Act. The United States Supreme Court has held that state law is preempted to the extent it actually conflicts with federal law. English v. General Electric Co., 110 S. Ct. 2270, 2275 (1990). The court has found preemption where it is impossible for a party to comply with both state and federal requirements. Id. Assuming that subchapter II of the ADA prohibits a public entity from aiding a private entity or person in discriminating in employment, the Texas Workers' Compensation Act is in conflict to the extent it requires the commission to release information about applicants' prior injuries to employers at the pre-offer stage. Clearly, it is impossible for the commission to comply with both state and federal law. Thus, we conclude that to the extent the two statutes conflict, the ADA preempts the Texas Workers' Compensation Act, and that the commission lawfully may not release information about applicants' prior injuries at the pre-offer stage to covered employers.[14]

[14] As noted above, from July 26, 1992 through July 25, 1994, the ADA will apply to employers with 25 or more employees. As of July 26, 1994, it will apply to employers with 15 or more employees. See supra note 3.

                                 SUMMARY

      Under certain circumstances, the Texas Workers' Compensation Act, article 8308-2.33, V.T.C.S., requires the Workers' Compensation Commission to release information to employers about employment applicants' prior injuries. Subchapter I of the federal Americans with Disabilities Act (the "ADA"), as interpreted by the Equal Employment Opportunity Commission, prohibits an ADA-covered employer from obtaining information about an applicant's workers' compensation history prior to making the applicant an offer of employment. A court, in interpreting subchapter II of the ADA, might conclude that it prohibits public entities such as the Workers' Compensation Commission from aiding a private entity or person in discriminating in employment on the basis of disability. To the extent they conflict, the ADA preempts the Texas Workers' Compensation Act, and the Workers' Compensation Commission may not lawfully release information about applicants' prior injuries at the pre-offer stage to ADA-covered employers.

                                              DAN MORALES
                                              Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General