                             Office of tip Elttornep Qheral
                                            &date of IEQexae
DAN MORALES                                     June 9.1992



     Mr. Todd K. Brown                                       opinion No. DM-124
     Acting Executive Director
     Texas Workers’ Compensation Commission                  Re: Whether the federal Americans
     Southfield Building, 4000 South IH-35                   with Disabilities Act precludes the
     Austin, Texas 78704-7491                                Workers’ Compensation Commission
                                                             horn disclosing job applicants’ prior
                                                             work injuries to prospective em-
                                                             ployers pursuant to the Texas
                                                             Workers’ Compensation Act, article
                                                             8303-2.33, 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 tbe commission to
     release information to employers about employment applicants’ prior injuries, in
     light of certain prohibitions iu the federal Americans with Disabilities Act of 1990
     (the “ADA”), 42 U.S.C. 9 12101 et seq.

           Article 8308-2.33(a) provides that a prospective employer who has workers’
    compensation insurtice 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 require-
    ments 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
    iuformation to the prospective employer regarding au 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~ ‘general injurf means an injury other than an injury to B digit, limb or member, an in&al
    hernia, or vision or bring loas. V.T.C.S. art. K30%234(c).


                                                    p.   639
Mr.ToddK.Brown              - Page 2              (DM-124)




        Subchapter I of the ADA, which generally prohibits discrimination on the
basis of disability* in employment, applies to employers.3 employment agencies,
labor organizations. and joint labor-management committees. 42 U.S.C. 9 12111(2).
Section 12112(a) of the ADA prohibits covered entities from discriminating “against
a qualified individual with a disability’ because of the disability of such individual in




                  (A) a physicaI or mental impairment that substantialIy limits one or more
            of the major Iife activities of such hlividual;

                  (B) a record of such an impairment; or

                 (C) bcii    regarded as having such an impairment.

42 U&C. f l2102(2).


         %hc krm “cmpklyer”
                         is sp&ficallydefinedas




42 U.S.C. 0 l2lll(S)(A).    The effectiw date of subchapter I is July 26, 1992. Thus, while the ADA
ultimatelywillapplyto employerswith15or morecmployr+ fromJuly 26,1992           through July 25,1994,
it will apply only to employers with 25 or more employees.

         The foIIowing entities arc cxchded from the deftition of employer: the United States,
corporations wholly owned by the gowmment of the United States, Indian t&es, and-bona fide private
membership dubs that are exempt from taxation under section 501(c) of the Internal Revenue Code of
1986. Id. 0 Ulll(S)(B).

        ‘TIE term “quaIifiedindividual with a disabiIi~ is defined as

           an hdividual with a disability who, with or without reasonabIe accommodation,
           can pcrform the csscntial timctio~~ of the employment position that such
           individual holds or desires. For the purposes of this title, consideration shaU be
           givw to the employer% judgment as to what functions of a job are essential
           and if an employer has prepared a mitten description before advertising or




                                                p.    640
Mr. Todd K. Brown - Page 3                        (DM-124)




regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and
privileges of employment.” (Footnote added.) Section 12112(c) provides that with
the exception of certain post-offer employment entrance examinations, a covered
entity “shall not conduct a medical examina tion 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 8 12112(c)(2)(A).

       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: and also has published interpretative guidance to the act and
regulations, see, e.g., EQUAL EMPLOYMENTOPPORTUNITY      COMM’N & U.S. DEP’T
OF JUSTICJZ,  AMERICANSWITH DISABILITIES     ACT HANDBOOK(1991) (the “ADA
HANDBOOK”); EQUAL EMPLOYMWT OPPORTUNITYCOMM’N, A TECHNICAL
ASSISTANCEh’lANUAL ON ‘ITiE EMPLOYMENTPROVISIONS(TITLE I) OF THE
AMERICANSWIT-I DISAB~                     ACT (1992) (the “ADA TECHNICALASSISTANCE
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. 9 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. Q 1630.14(a). The regula-
tions 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 diiabiiity.


(footootc cclntinucd)
            intctiewing applicants for the job, this description shall be considered evidence
            of the essential functioris of the job.

42 U.6.C.5 l2111(8).

        %xtion    12116 of the ADA authorizca Ihe EEOC lo issue rc@tion~                  ‘to carry out’
subchapter 1.


                                                 p.    641
 Mr. Todd K. Brown - Page 4                      (DM-124)




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

        The EEOC has interpreted the prohibition on pre-offer inquiries also to
prohibit inquiries about applicants’ workers’ compensation history. ADA HAND-
BOOK at I-70; ADA -CAL              ASSISTANCE  MANUALpt. IX, 0 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: “[blefore 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
ASSISTANCB    MANUALpt. V, 0 5.5(g), at V-16; see aIs0 id. at V-17 (“DIefore 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’ before making the applicant an offer of employment.

       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 TECHNICALASSISTANCE 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 ‘rECHNICAL
ASSISTANCE MANUAL pt. VI, 9 6.1, at VI-I, VI-t-6, pt. IX, 55 9.1, 9.3, at IX-3; see
&o supra note 6. Neither the EEOC regulations nor the ADA HANDBOOK or


         %‘WCnote that section X21X2(c)(3)of the ADA permits post-offer, pre-employment mediw~
c?tambdm.      It does not expresly mention in&&.       Apparently, tbe EEOC has interpreted this
pwvisioB to also permit post-offer, pre-employment inquiries. we assume for purposes of this opinion
that the BEOC’s inkzprctation of the ADA is valid.

         %Vc note that not all prior injuries wcessady will rise to Ihe level of a “disabili~ as defmed
by the ADA. Company supm note 1 wilh sups note 2 Given the ADA’s broad, subjective deftition of
VisabiU~,’ however, we do not b&w         that a clear distinction can be made bctwccn injuries about
which employers may or may not lawtidly inquire. Moreover, the EEOC seems to bavc interpreted the
ADA to prohibit all prc-offer inquiries about workers’compensation history, regardles of the severity
of the prior injuries.


                                                p.    642
 Mr. Todd K. Brown - Page 5                    (DM-124)




ADA TECHNICALASSLSTANCE            MANUALsuggest that employers are prohibited
from obtaining information from sources other than the applicant at the post-offer
stage. Indeed, the ADA TECHNICALASSISTANCE MANUALsuggests that, subject to
confidentiality strictures on the use of such information, the ADA gives employers
wide latitude in making inquires at the post-offer stage. Id pt. VI, 8 6.5 (“the ADA
does not limit the nature or extent of post-offer medical examinations and
inquiries”).* 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.9

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




         %Ve also note that the Texas Workers’ Compwation        Act requires employcr~to obtain
written authoriatioa from applicants before requesting information from the commission. V.T.C.S.
art. 8303-233(d).

         Pillar o&c has rcceiwd a brief contending that section l2llz(c)(3) of the ADA permits only
post-off~u medical aaminrtionr and does not permit post-offer inquiries. This argument is not
cmsistwt with the EEOC’s iaterpredo~ of the ADA. Set 29 C.F.R. 0 1630.14(b); see &o supm note
6. The h&f also conteds that the EEOC intcrprctivc guidance to the rules provides that employers
may submit information about employees’ workers’ compensation histories to state workers’
wmpcnsation agcncics but expressly forbids such agendes from communicating such information to
employers. See ADA HANDBOOKat I-73-74 (Interpretive Guidance to 29 C.F.R. 5 1630.14(b)). We
do not bclievc this is the cast. As the ADA TECHNICAL ASSI~~ANCIZ    MANUALmakes clear, the EEOC
has attempted to clarify that communications by employers to state workers’ com@sation agencies
regarding employees’ workers’ compensation histories arc exapted from the general confidentiality
s&hue govmdng post-offer medical uaminations and inqubics contained in section l2lX!Jc)(3)(B)
of the ADA in order to allow employers to participate in state “second injw        funds. See ADA
-(XL.        ASSISI’AN~Z MANUALpt. IX, 0 95; 29 C.F.R. 0 1630.14(b)(l) (requiring that post-offer
medical examinations and inquiries be kept confidential). We do not believe that the. EEGC’s
interpretive guidance addresca the wmmunications at issue here. We note, however, that section
l2lu(c)(3)(B) of the ADA appears to require employers to keep con!Xential the information they
nccivc from the commissioB.




                                              p.   643
Mr. Todd K Brown - Page 6                       (DM-124)




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

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

ADA TECHNICALASSISTANCEMANUALpt. VI, 0 6.4 (footnote added). An
employer cannot withdraw a conditional job offer absent a significant, current risk of
substantial harm to health or safety. Id. at VI-g. 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.”

       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
Ulll(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 du&mination
                            *             in employment. Subchapter I does not
appear to apply to persons and entities other than those listed in section 1211l(2) or
to conduct other than that descriied in section 12112.


         ‘%ction l2111(3) of the ADA d&w         ‘dircd threat- as “a significant risk to the health or
safety of c&era that cannot bc elimiitcd by reasonable accommodation.”

         %IW ADA TECHNICALASSISLW(Z MANUAL arpressly BOW.,however, that it might be
permissiile for an employer to withdraw an offer from an employee in the following circumstaaccs:

            a workers’wmpwsation history iudicatce multiple claims ia recent years which
            hate bwn d&cd.       AB 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 de&ion is not
            based on disabiity.

ADA TI?CHNICAL
             ASSETAN= MANUALpt. VI, p 6.4, at W-7; see &O id pt. Ix, 4 9.8.


                                                 p.   644
Mr. Todd K Brown - Page 7                     (DM-124)




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

                   Subject to the provisions of thii 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 &suimination by any such entity.

42 U.S.C. 9 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. 9 12131(l).U 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 discrimina ting 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. 9 35.130.” 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.

       Finally, you ask whether the ADA preempts the Texas Workers’ Compensa-
tion Act. The United States Supreme Court has held that state law is preempted to
the extent it actually conflicts with federal law. English Y. Gene& 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 sub-
chapter II of the ADA prohibits a public entity from aiding a private entity or
person in dis criminating in employment, the Texas Workers’ Compensation Act is in


        12SectioalZZOZoftbcADAprovidcsi.partthatastatc”ahallnotbeimmuneunderthe
ekvmth amwdmcnt to the Coastitution of the United States from an action in Federal or State wurt
of wmpctent jurisdiction for a violation of this chapter.*

           %&ion    I2W of the. ADA authorim the Uoited States Attorney Geld       to pmdgatc
r@ations     to implement d&ion A of subchapter II.


                                             p.   645
Mr.ToddKBrown           - Page 8              (DM-124)




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

                                     SUMMARY

                Under certain circumstances, the Texas Workers’ Com-
           pensation Act, article 8308-2.33. V.T.CS., 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 Commis-
           sion may not lawfully release information about applicants’ prior
           injuries at the pre-offer stage to ADA-covered employers.




                                                  DAN      MORALES
                                                  Attorney General of Texas




         1% nowI abovt, from July 26,1592 through July 25,19!W, the ADA will apply to employers
with 25 or mom cmployce~. As of July 26,1994, it will apply to employers with Is or more emphyw.
seeqntanote3.


                                             p.    646
Mr. Todd K Brown - Page 9            (DM-124)




WILL PRYOR
First Assistant Attorney General

MARYKJXLER
Deputy Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




                                     p. 647
