Trucking company discriminating against an old Injury and asking for evaluation?

jsdhesmith

New Member
Jurisdiction
Missouri
Hello, My name is Jason and I am trying to get a job at a National OTR trucking company that distributes food all across the country. This is a Large Company headquartered in Illinois. After I was offered the job following a job interview I was given a list of things I had to complete before I could be sent off to training. I also received a call from their Company nurse who asked me a list of questions regarding my medical history, to which most of the answers were no because i had no prior problems except for a back surgery I had in 2007. Promptly this nurse if I had any records from my surgery and if I didn't could I obtain them from the hospital where I had the surgery. I agreed, and after a couple phone calls and a few emails later I learned from the place where I had surgery all records were destroyed after 7 years. I forwarded this email to the nurse and the terminal manager who was hiring me and there response was "Noted, Thanks". The next thing I had to do is go to a hospital and get a drug screen, take a DOT physical, and finally pass a physical ability test for the position of delivery driver. I took all of these test and passed them with no problems and was told I could start training the following week. After a couple days went by the nurse from the company called me up and explained to me that she was sorry she had to postpone my training because they need some sort of record or evaluation on my prior surgery, which I again replied, "there were none, they were shredded". She said she understands that but because the requirement of the job as a delivery driver was labor intensive they needed to have something on file showing and documenting my back surgery along with x-rays. As far as I was concerned from management before I got hired for this job, the only requirements for the job are, class A cdl, ability to pass a physical ability test, experience, dot certificate, and pass a drug screen. I have and completed all of these requirements and feel like I am being harassed about my past surgery or disability. Am I being screwed over by this company? I have read the laws with the EEOC and the ADA and both of them state very specific laws that are in place to protect someone from this very situation and I quote.

(EEOC website)
"If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.

An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.

Once you have been hired and started work, your employer cannot require that you take a medical examination or ask questions about your disability unless they are related to your job and necessary for the conduct of your employer's business. Your employer may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws.

The results of all medical examinations must be kept confidential, and maintained in separate medical files."

I don't know if I am being paranoid, or this is in fact legal? The terminal manager and I have been talking through text mostly, so I quickly let him know I was upset and felt like I was being singled out, possibly being denied because my prior injury. He has also ignored some of my messages during the hiring stages, stating he was busy or on another line, and so when I text my frustration over this new information regarding the evaluation that needs to be done and the postponement of my training, I also included in my text how un professional he's been in communicating with me. I was furious in finding this news out, I'm out of work, and yet again I find myself having to go through more lengthy test before I can leave for training. I feel like they're trying to get me to lose interest in the job with this extra evaluation process, hoping ill lose interest and move on to another job. He called me back a couple hours after I sent the text and apologized for his lack of communication and also for the lengthy process and proceeded to tell me what they are doing is necessary because of the hundreds of thousands of dollars they have lost in the past from prior work injuries. I was shocked he was even saying this to me, he actually told me basically were covering our ass so in the incident you do get hurt were not left responsible. He continued to tell me they really want me to work for them, however, they need to be safe too.
 
Here's the important part.



Delivery driver job falls right into that part.

You reinjure your back and the company ends up with a big worker's compensation claim. The employer is quite within his rights to avoid that.

How can an employer reject a work comp claim if the injury was a direct result of the job, regardless of past injuries? If that was the case, then they simply would not hire anyone with prior back injuries, but they do, I was told so.
 
How can an employer reject a work comp claim if the injury was a direct result of the job, regardless of past injuries? If that was the case, then they simply would not hire anyone with prior back injuries, but they do, I was told so.

I was also told I have to cover the cost of getting an evaluation! There is a case almost identical to mine "Holt vs. BNSF railway" where the EEOC stepped in and one a settlement over the same situation.
 
How can an employer reject a work comp claim if the injury was a direct result of the job, regardless of past injuries?

He can't. As written, that would be illegal.

But he can avoid the risk of a future claim by not hiring somebody who could potentially have one due to the physical requirements of the job.

If that was the case, then they simply would not hire anyone with prior back injuries, but they do, I was told so.

Yes, they do, once the potential risk is minimized by careful consideration of the applicant's history.

I was also told I have to cover the cost of getting an evaluation! There is a case almost identical to mine "Holt vs. BNSF railway" where the EEOC stepped in and one a settlement over the same situation.

EEOC v. BNSF Ry. Co., 902 F. 3d 916 - Court of Appeals, 9th Circuit 2018 - Google Scholar

I just finished reading the entire decision and I agree that you cannot be required to incur the cost of the additional evaluation. But I see nothing in that decision that prohibits the prospective employer from confirming your current physical ability for the work.

At this point I suggest you ask the prospective employer to cover the cost of the additional evaluation, first without mentioning the case decision. Do it by email so you have a written response. If you do it by phone, record the conversation (legal in Missouri). If you get a "no" then cite the case decision (also in writing or in a recorded conversation). If you still get a "no" and you don't get the job, you'll potentially have evidence for the EEOC.

Come back to this thread and report the results if you like.
 
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