Q: Currently, I don't have any employees working for me. I am interested in using the Preferred Worker Program. How can I do this?
A: You must first have a Workforce Safety & Insurance (WSI) account, which is in good standing. Then, you may use the benefits of the program.
Q: How is the Preferred Worker Program funded?
A: It is funded by what is known as the general fund. This fund is established to absorb charges not charged to the employer's accounts.
Q: Can I hire back one of my own employees as a Preferred Worker?
A: The employer of injury is not eligible for program participation with its own employees unless the employer of injury has indentified permanent alternate work for the injured employee. Alternate work is considered permanent work that is provided to the employee that is outside of the pre-injury position and requires the employee to perform work duties in another role.
Q: Does the three-year exemption period mean that I am obligated to keep a Preferred Worker for the full three years?
A: No. A Preferred Worker falls under no special set of rules. The guidelines regarding job necessity that apply to all other positions within your company also apply to the Preferred Worker's position. Your company's policies and procedures which are in place for all employees apply to your Preferred Worker as well. It is beneficial to discuss this with your Preferred Worker.
Q: Can the Preferred Worker Program benefits be used for part-time employment?
A: Yes. Benefits are available for workers who are part-time, temporary, or full-time.
Q: How can I address the issue of work restrictions and appropriateness of accommodations with a Preferred Worker applicant?
A: Preferred Workers have been encouraged to proactively address your concerns. If a worker voluntarily discloses information about a previous injury, employers may now legally address the concerns of reasonable accommodations by asking the applicant, "What type of accommodations do you think you will need to perform the essential job functions of this job?" The Preferred Workers have been educated on the benefits of the program and are encouraged to explain those to you as an employer.
Q: If I hire a Preferred Worker, haven't I opened myself up to a discrimination lawsuit by the unsuccessful applicant who is not a participant in the program?
A: No. In typical discrimination lawsuits, the plaintiff must be a member of a protected class to assert such a charge. Some of the classes have derived protection constitutionally (race, religion, national origin) while others derive protection based upon specific statutes (age, physical and mental disability). Presumably, you have hired the best applicant for the position. This, in itself, is defense to the charge. However, individuals who do not fall into one of the protected classes generally do not have standing to sue.
Q: If a Preferred Worker applies and I hire someone else, can I be sued for discrimination under the Americans With Disabilities Act?
A: You can be sued for almost anything. The question is what are the chances of a plaintiff's success? If you have hired the best applicant, the chances for success are minimal. Remember, in order to be protected under the ADA, an individual must be found to be disabled. Following the most recent Supreme Court cases on this issue, a rigorous standard is in place. An individual can invoke ADA protections only if restricted "from performing tasks that are of central importance to most people's daily lives" Toyota Motors, Inc. v. Williams, No. 00-1089, ____U.S.____(2002). The United States Supreme Court has consistently and narrowly interpreted the issue of disability. It appears that in order to be disabled, an individual must be exceptionally and profoundly disabled to meet this test. All others fall outside the protected class.
Q: How can my business be added to the Employer list?
A: Contact a Preferred Worker Program representative and provide your business information.
For additional information on proper hiring practices, consult the North Dakota Department of Labor web site at http://www.state.nd.us/labor.