A reader asks:
My husband had to get a pre-employment physical before he was offered a job. During the physical he tripped on a weight that was on the floor. He broke his wrist in the fall and the company didn’t make the job offer. Can he bring a workers’ compensation claim?
The question is was he or wasn’t he an employee at the time of the accident. I asked an employment law attorney I know his thoughts. Here is what he said:
Under the Americans With Disabilities Act, an Employer may require an applicant to submit to a physical examination only after that Employer has extended to the applicant a conditional offer of employment [that is, an offer that is conditional on the applicant passing the physical].
So, the EEOC Guidelines contemplate this issue where any offer of employment is made conditional on the outcome of the physical. As a labor and employment lawyer with no WC expertise, I’d say that unless and until such an applicant/conditional offeree does successfully complete the physical, he or she is not yet an "employee" under contract law or other employment laws.
If by "physical testing" the original questioner meant a physical fitness test or physical agility test rather than a medical exam, the EEOC Guidelines state that fitness or agility tests are not "medical exams" [so long as they don’t also include a physical exam]. [If you have the applicant show that he or she can climb a ladder or carry boxes, that’s a fitness or agility test. But if you also take their blood pressure after that physical exertion, you’ve transformed the fitness and agility test into a physical exam, which the ADA says you cannot give to applicants before you have conditionally offered to hire them.]
Since the ADA’s ban on pre-offer physical exams does not apply to mere fitness or agility demonstrations, an Employer can require all applicants (that is, applicants who have not yet been given a conditional job offer) to demonstrate agility or physical fitness for any job that requires agility or physical fitness.
He’s not the best in plain English talk, but he does know what he is talking about. So unfortunately for this reader, there does not appear to be a work comp claim although they may have a negligence lawsuit.
We are workers’ compensation attorneys that help people with Illinois work injuries anywhere in IL via our statewide network of attorneys. Contact us and we will answer your questions or find the right lawyer for your situation.
