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  • Are Your New Hire Screenings Following the Law?

    I recently read a story online noting that Amsted Rail Co, Inc. will pay $4.4 million to settle a class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

    According to the article, the EEOC charged the Chicago-based company with violating federal disability law when it disqualified job applicants based on the results of a nerve conduction test for carpal tunnel syndrome (performed by a third-party contractor) rather than conducting an individualized assessment of each applicant’s ability to do the job safely.

    In November 2017, the court ruled Amsted Rail’s use of the nerve conduction test was unlawful, finding that it had little or no value in predicting the likelihood of future injury.

    This struck me as incredibly interesting, as it’s a relevant case for employers today. As part of their overall risk management process, many clients are conducting post-offer, pre-employment physical screenings to qualify job applicants for various jobs. Here’s the thing, though. There are specific requirements you need to be aware of under the Americans with Disabilities Act (ADA) of 1990 — 29 CFR 1630.14(a) — and the EEOC. An overview of EEOC requirements can be found on their website, if you’d like to read a little further on it. But, related to the case above, it’s crucial the tests and selection procedures are “properly validated for the positions and purposes for which they are used” according to the EEOC.

    So, what do you need to know? Well, post-offer physical capability screening is a method to compare a new-hire candidate’s current functional status to the physical demands of the job.  Normally, a physical demands analysis (PDA) is completed for all available jobs in the company by an ergonomist or safety professional. The PDA and capability screening process are normally part of a larger, more comprehensive ergonomics program to reduce ergonomic injury risk and losses. It allows the employer to choose candidates who are strong enough, mobile enough, and fit enough for the job. The screening protects the worker from needless harm and the employer from needless costs associated with that harm.

    Under the ADA, an employer can ask disability-related questions and require examinations of an applicant only after they’ve been given a conditional job offer. Post-offer employment testing fits this guideline, especially if the test administered measures more than the simple ability to perform a task. After a provisional offer has been made, many restrictions are removed, as long as all potential employees in the job category are subjected to the same process.

    On top of that, capability screenings should be conducted by an occupational or physical therapist. Functional activities normally conducted are lifting, pushing/pulling, job simulation, cardio-vascular testing, and strength/flexibility. The results are then compared to the PDA to determine if candidates are qualified for the position.

    Researchers have shown through various studies that physical capability screening is effective.  The researchers predicted “as job strength requirements approaches or exceeds the demonstrated isometric strengths of workers on the job, the mean (injury) incidence and severity rates increase on a ratio of about 3:1” (Chaffin, 1978, Pre-employment strength testing, Journal of Occupational Medicine, 20(6), 403-408). One study even showed this: “The severity of back sprains or strains, related medical costs, and lost workdays were significantly lower with the use of pre-work functional screens on all new employees hired into physically laborious jobs” (Nassau, D.W. [1999]). The effects of pre-work functional screening lower an employer’s injury rate, medical costs, and lost workdays. Spine, 24(3), 269-274).

    It’s hard to argue with those studies. I think it’s realistic to say job candidates must be physically capable of performing the work. Although accidents can result in injuries even to the most able-bodied employees, frequently injuries occur because the employee is simply unable to perform the work. Therefore, one of the best ways to reduce costs due to injuries is to select individuals who are physically qualified to perform the work. My suggestion is just this: make sure you’re following the law.

    If you have any questions about this or want to talk out strategies to ensure your hiring processes are in line with the rules governing those processes, feel free to reach out!

    Published on: 06.28.18

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