A bill currently before the Montana Legislature presents some interesting ethical challenges. Senate Bill 116 could make injured employees ineligible for workers’ comp benefits if they knowingly fail to disclose a previously existing medical condition pertinent to a job on any pre-employment applications.

The idea behind this bill is emotionally enticing, because it targets people who may intentionally endeavor to deceive employers about their ability to do the job, as well as the potential risk of employing them. After all, no one likes to see scammers have their way with the system. On the other hand, it is usually illegal to make employment decisions based on medical information or potential disabilities, so the disclosure of any such medical condition could not, in most cases, be used to deny someone employment. And my concern along those lines is that many employers ignorant of the law will in fact use that data for making what are essentially discriminatory and illegal decisions. 

What to do, what to do…..

Let’s look at it this way. We will assume that this bill passes into law, and that Joe Schmoe has applied for work at Stanley’s Steel Fabrication shop. The job that Joe is hoping to land requires regular lifting of up to 50 pounds. Joe had back surgery a few years prior, and as a result has several fused lower vertebrae. If Joe fails to disclose that to Stanley, gets the job and then hurts his back, workers’ comp could legally deny him any benefits for that injury.

Does that mean Stanley is off the hook? Not by a long shot.

What we continually seem to forget, as we peck and chip at elements of workers’ comp under the Grand Bargain, is that continually creating windows of opportunity to avoid responsibilities creates equally large holes in the protections of exclusive remedy. Just because Stanley’s insurance carrier can wash their hands of the affair doesn’t mean Stanley is scot-free. Was Stanley negligent? Did they maintain a cluttered and unsafe workspace? Could the injury have been avoided with updated and proper equipment?

Stanley now has an injured employee who cannot work and is denied the medical care they need. And he has no workers’ comp protection. He may not know it, but his liabilities may be far greater outside the comfy and exclusive world of workers’ comp. A lawsuit could result in obligations for medical, wages, pain and suffering; even loss of consortium.

Let us take a moment to look at the other alternative. Let’s assume that Joe Schmoe fully discloses his back issues. Is small employer Stanley going to hire him? And even less likely, is small employer Stanley sophisticated enough to find some other reason to decline him? 

In reality, neither situation is palatable. Stanley may not know it, but in Sheldon Cooper speak he is potentially joined to another object by an incline plane, wrapped helically around an axis. In plain English; Stanley is screwed if a Schmoe with a bad back applies at his shop.

We’ve come a long way from the early days of the ADA, where we stopped asking about physical limitations and simply asked, “Can you do the job?”

The greater concern for me is that this is yet another example of restrictions and limitations that are eroding the very foundation on which our industry is built. Sure, I understand employers are frustrated paying for injuries that were not their doing, but they didn’t like open tort liability, either. We seem to forget the second half of that bargain while we whittle and tear away at the side we do not like. With the growing entitlement mentality people have today, combined with liberal court tendencies to declare all employers evilly responsible, I warmly embrace the deal that gives me some protection in the process.

Yet we seem to want to make exception after exception.

Other examples of this mentality can be found in attempts to prevent illegal workers from gaining benefits if injured on the job. I have a hard time reconciling that in my mind. Someone hired them. Someone ostensibly received the benefits of their labor in the pursuit of the business objectives. But if they get hurt, somehow their illegal status gives us a pass on any further obligations to them. Don’t get me wrong, if they are here illegally (note I do not use the PC phrase “undocumented”), throw them in jail or send their ass home; but take care of their injuries that your workplace caused. We shouldn’t be looking for a myriad of excuses to dilute the reason our industry exists.

At the recent WCRI Conference in Boston, Emily Speiler, Dean of the School of Law at Northeastern University, made an interesting comment along these lines. Her quote essentially said (paraphrasing as I am a terrible note taker), “The basis of workers’ comp was originally that you hired a person as they are,” and that exemptions and restrictions such as this tear at the fabric of the Grand Bargain. She is correct in that assertion. No fault was intended to be no fault; and trimming that concept with a double-edged sword will not produce the benefits intended for employers in this deal.

So, Montana may soon require the disclosure of physical ailments and disabilities on job applications. I predict it is a solution that will create a myriad of other issues, and will not be the panacea some believe it will be. As always, some schmoe will come along to challenge the conventional thought, and some employer will be truly screwed, indeed.

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