Increasingly, employees are holding their employers liable for injuries sustained while on the job. This responsibility extends far beyond workers' compensation and can run into hundreds of thousands of dollars in complicated lawsuits and insurance claims, in addition to man-hours lost to administrative legal tasks. Considering that a court case may drag on for months or years, that can add up to a considerable sum one with which most companies are loathe to part, particularly if the suit is preventable.
It is not surprising that companies are looking at pre-employment testing as a means of keeping accidents and injuries at bay. Theoretically, an employee who is physically matched to the job is less likely to sustain an injury. Thus, if an employer could determine who is physically best-suited to a position, he could reduce the likelihood of on-the-job injuries.
While always hiring a physically fit person can decrease injuries, relying on that criteria alone would spell certain unemployment for more than a few Americans.
Realizing this, Congress passed into law the Americans with Disabilities Act of 1990 (ADA), legislation designed to protect workers from discrimination because of a disability. Employers feared they would be prevented from testing potential hires on their ability to perform a job.
Although ADA does not prohibit pre-employment testing, it does determine what tests are allowable and at what point during the hiring process they may be administered. Further, ADA explicitly states that all exams must be directly relevant to the requirements of the job and that a medical exam cannot be given until an offer of employment has been extended.
At issue for the safety field are whether the tests are task-appropriate and how accurate they are in predicting predisposition to physical injury.
Pre-employment tests run the gamut from complete physicals to narrowly tailored exams that test for strength, cardiovascular endurance, drugs or alcohol. Which test is used depends on what the employer wants to discover.
There are a panoply of testing methods from which to choose, providing that the test is administered by a professional experienced in dealing with regulations of the Equal Employment Opportunity Commission (EEOC), which is responsible for implementing ADA.
Charles Anderson, Ph.D., CPE, president of Advanced Ergonomics Inc., Dallas, says that, while companies can identify key job elements that mandate testing, they should call a professional when it comes to the actual administration of the test.
"We look at the physical requirements of the job, then design a battery to meet them that might mean one test or a series depending on the demands of the job," said Anderson, whose company designs customized and personalized tests. Batteries, he said, can cost from $70 to $250 per person and typically take 30 minutes or less.
"In warehouse work, employees will encounter significant endurance and strength requirements and conceivably, agility," he continues. Many of the tests Anderson"s firm administers are true to life. For example, "We'll have prospective hirees lift a box reflective of the size they will have to lift on the job. Then we'll add weight until they feel they can no longer safely handle it," explains Anderson.
Isometric machines that require a person to slowly increase the force exerted on a set of static handlebars are also common. Other strength tests include measuring a person's lifting capabilities from floor to knuckle height, from knuckle to shoulder, and overhead; measuring grip strength; and measuring trunk extension/flexion. Anderson adds that strength tests, while helpful, do not begin to touch upon candidates' cardiovascular abilities.
Where repetitive motion is required, cardiovascular capabilities should be tested, says Anderson. "The fitness level is the issue. People tend to use step, [stationary] bike or treadmill tests. We use the treadmill because it doesn't take people up to their maximum heart rate; therefore, it is safer to perform on a large-scale basis," he says.
Agility tests might be necessary for employees who work in confined spaces. "This comes up especially with construction and shipbuilding, where the most difficult part of the job is getting to where the task needs to be performed," explains Anderson. "They might have to move though crawl spaces or walk across sloped surfaces, so our test would be a direct simulation of the task at issue."
In the past, X-rays were used to determine predisposition to back trouble. The problem, says Anderson, is that neither X-rays nor electromyography (the placement of electrodes over muscles to monitor their activity) is indicative of a person's ability to perform a given task. While strength and aerobic tests tell a person's ability to perform a task at a given moment, there is controversy over their predictive powers.
In designing pre-employment tests for corporations, Mark W. Van Dyke, D.O., medical director of the University of Pittsburgh Medical Center/Work Partner, recommends that the tests "simulate job activities."
No method is foolproof, however, according to Van Dyke, who chairs the American College of Occupational and Environmental Medicine"s committee on low back pain. "Everybody and his brother has tried to invent lifting or diagnostic equipment that can predict back injury," he says, "but the only correlation we have found is that a person who reports an injury is likely to have had a negative job review in the past six months. The tests we give only show that, at that moment, a person has the capability to lift what the company wants him or her to. It doesn't mean he or she won't wear out or get injured."
Anderson has found that, while tests may not be 100 percent predictive of future back trouble, strength and cardiovascular tests have merit. "It's very much a gray area when defending batteries [of tests] as predictors of future injuries," Anderson said. "We have found that people who can't demonstrate the strength and endurance to perform the job have a higher risk of all types of injuries: about twice that of people who have demonstrated their ability."
Legal issues are waiting for companies that proceed with pre-employment testing. "The ADA, in general, prohibits all pre-employment medical inquiries," says Jonathan R. Mook, an attorney in the Washington, D.C., office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. "ADA breaks up the application process into two stages. The first is pre-employment; the second is when a conditional offer has been made. At pre-employment, the employer can make inquiries that aren't medically related, but they must focus on the person"s ability to perform functions."
Things get tricky, says Mook, because of EEOC definitions. "[EEOC] defines job functions as the purpose of the job, not necessarily the way in which that job is performed. Employers, therefore, need to describe functions with regard to why the function exists, as opposed to how an employee should perform it."
If a prospective employee is extended an offer, it may be conditional upon successful completion of a medical exam by a doctor of the company's choice, notes Mook. At this stage, the employer can conduct a full medical history and ask whatever questions or conduct whatever exams he wishes. "There are no limits on questions or exam types," says Mook.
According to EEOC, to revoke a job offer, a "direct threat" to health or safety must be present. A weak back that may cause trouble down the road does not constitute an acceptable reason, says Mook.
"A direct threat is narrowly defined by ADA as something that is a significant risk to the health and safety of others that can't be eliminated or reduced by reasonable accommodation," he explains.
EEOC has developed a series of factors to help companies determine if a direct threat is present, but, says Mook, "they haven't set forth a formula as to how you weigh each factor. That puts employers in a difficult position because there is no certainty; it boils down to a judgment call of where they feel comfortable."
The real trouble can start when an employer decides to revoke an offer based on the results of an exam. "The employer can only do so based upon information ... that indicates the person can't perform the job," explains Mook. "If a person is HIV-positive but asymptomatic, that"s not a legitimate basis for revoking an offer." For this reason, many lawyers, Mook included, advise clients to limit their exams.
"Even if employers can conduct a head-to-toe exam, they should limit the tests to medical information that is directly related to the ability to perform a job. They don't want more information than they can use because of the possibility of a plaintiff arguing that the decision to revoke an offer was based on irrelevant information," he says.
Drug and Alcohol Tests
Drug and alcohol tests can enter employers into a legal labyrinth. "Under ADA, a test for illegal drugs is not considered a medical exam; however, tests for legal drugs are," Mook acknowledges.
"If you're trying to test for both legal and illegal drugs, you can give the test at the pre-offer stage. If it turns up positive, you can attempt to verify if the drugs were taken legally or illegally and not run afoul of the law. The other option is to wait until an offer has been extended, then test as part of the medical exam. Because there are no limitations on conditional-offer medical exams, you don't have to worry about whether the drugs are legal or illegal," he said.
Moreover, an employer cannot revoke an offer simply because of the presence of legal drugs. "He can [do so] as long as there is a medical basis for arguing that the use of those drugs would prevent [optimal] job performance or performance in a safe fashion," Mook says. "If an individual applying for a warehouse position is taking Prozac, the employer would be hard-pressed under ADA to revoke the offer."
Do It Right
Employers who require pre-employment testing should make sure that they not only meet ADA regulations, but also that the tests are performed correctly.
"In addition to minimizing legal costs, most employers are looking to maintain positive employee relations," says David E. Jones, an attorney with the Atlanta office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. "If employees discover that an employer is testing in ways that might lead to employees being transferred or some other perceived unfair treatment, it could damage positive relations and may even increase turnover."
Ultimately, each organization must decide whether it will conduct pre-employment testing. Despite potential legal pitfalls, as Jones points out, it may behoove employers to at least consider such tests. "In some states," he warns, "employees can ... sue the employer to recoup damages for injuries or disorders that occurred while on the job. The employee may consider bringing suit under a negligent hire theory, alleging that the employer should have been more careful in matching him to the job."
That turning of the tables is one of many reasons that ADA's impact on pre-employment medical testing is such a legal and medical maze.
Kristina Rundquist is a Washington, D.C.-based free-lance writer who covers health, safety and environmental issues.