The 9 Key Steps to a Defendable Post-Offer: Step 6

This is step 6 in The 9 Key Steps to a Defendable Post-Offer Blog Series:

Document Your Protocol

Post-offer employment tests are twice as likely to be subject to an EEOC settlement or Court of Appeals judgment as stay-at-work or return-to-work functional capacity evaluations. An employment test package, whether post-offer or functional capacity evaluation, contains elements from a variety of clinical practices that may not appear to be germane to an individual test protocol. Clinical standards for safety, rationale of test development, and a job-calibrated essential function job analysis are examples of such information.

The Thinking Evaluator can strengthen the defensibility of their practice by addressing these elements within your protocol documentation package, thereby also addressing the issues which are typically the weakest in post-offer test protocols:

1. lack of definition of the essential functions of the job
2. inaccurate definition of the physical or cognitive demands of the essential functions
3. illegal inquiry into personal or family history
4. misinterpretation of test instructions
5. lack of appropriate response to a request for an accommodation during testing
6. failing to secure medical information gained during an employment entrance examination

Lack of definition of the essential functions of the job

Virtually all federal cases involving post-offer testing begin with a reference to the essential functions of the job in question. Why? Because the law mandates that a qualified individual be judged on his or her ability to successfully execute these functions, with or without accommodation.

Lesson: Strengthen your post-offer testing protocol by including in your documentation a clear list of the essential functions of the job. If you are not allowed to perform such a job analysis, add a note to your test documentation about the source of the essential function and job demands data used as the basis for your test.

Inaccurate definition of the physical or cognitive demands of the essential functions

The Thinking Evaluator might wonder how an employment test can lack accurate definition of the physical or cognitive demands of the essential functions of the job. Reflect for a moment on the protocol you have been asked to perform: does it list the actual forces (weight, grip, initial force and sustained force for push/pull), ranges of movement (lift, carry, push, pull, walk), time (sitting, standing, repetition of work cycles), and postural positions of the job?

Lesson: Upgrade your tests. Demand that the protocol you use include a description of the physical and cognitive demands such that you see a clear picture of how job tasks are performed. Document the repetitions, length of exposure to a demand, frequency of exposure, forces, and distances encountered in the job.

Lesson: If performance of a particular demand forms the central question to a return-to-work or stay-at-work evaluation, and if this demand must be performed in a specific manner (i.e., walk 100 feet, heel-to-toe carrying a box weighing 30 pounds, one time per day.) include this information in your test documentation.

Illegal inquiry into personal or family history

The issue of how much, and what type, of private medical information a company or an evaluator can gather is of constant debate. That debate need not occur. As described in other areas of this post, the law is very clear on Congress’ intent to limit the gathering of information to the business necessity of doing so. Here is a snippet of the code regarding information gathering at the post-offer stage of employment:

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination 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.

An illustration of this concept can be found in an EEOC news release regarding its suit against the Abatti Group:

The EEOC contends that the Abatti Group and its subsidiaries All Star Seed, Green Touch Fertilizer and Eight Star Commodities required job applicants to undergo illegal physical exams and questions about their medical conditions.  The Abatti Group also made illegal inquiries into applicants’ family medical histories-also known as genetic information-as a condition of employment. 

According to the EEOC, at least one applicant was denied hire as a result.  In 2010, a temporary worker applied for a full-time permanent dispatcher position at the Abatti Group’s El Centro, Calif., location.  The applicant was allegedly informed that he would be considered for hire after taking a physical examination and drug test.  The individual continued to work as a temporary worker in the dispatcher position pending those results. 

Part of the medical examination solicited disability-related information as well as family medical history unrelated to the job, contends the EEOC.  The applicant reluctantly disclosed that he was hospitalized one time due to an issue with his heart, a condition shared by others in his family. Ultimately, he was denied hire because the Abatti Group allegedly regarded him as being disabled even though the one-time hospitalization had no correlation to the work he was already doing.

Such alleged conduct violates the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).  The EEOC filed its suit against the Abatti Group and its subsidiaries in the U.S. District Court for the Central District of California [EEOC v. All Star Seed dba Eight Star Commodities,  Green Touch Fertilizer, and All-star Seed Company; La Valle Sabina, Inc. dba  Eight Star Equipment and Eight Star Logistics; and Abatti dba Abatti Companies; Case No.  CV13-07196 JAK (AJWx)], after first attempting to reach a pre-litigation settlement through its conciliation process.  The EEOC’s suit seeks back pay, compensatory and punitive damages for the applicant as well as injunctive relief intended to prevent further discrimination at the companies.  

“The law on genetic information and family medical history is a new frontier in employment discrimination law,” said Anna Park, regional attorney for the EEOC’s Los Angeles District Office.   “It extends beyond the hiring stage, prohibiting inquiries at any time with only a few minor excep­tions.   Employers need to be cognizant of their legal requirements and be respectful of every applicant’s and employee’s right to privacy.”

Marla Stern-Knowlton, director of the EEOC’s San Diego Local Office, added, “Under federal law, employers are prohibited from making pre-employment inquiries about an applicant’s disability or genetic information.  Unless there is a business necessity for such questions, companies should steer clear of asking broad questions about an applicant’s health.”

Lesson: Be sure your clinical testing policies and documentation include an instruction to work evaluators, and potentially other staff, against asking questions that are (1) not job-related and consistent with business necessity, (2) are likely to cause the revelation of a non-related disability, or (3) probe family medical history.

Misinterpretation of test instructions

The two largest federal court settlements involving post-offer tests focused on the effect test instruction had on an invalid test protocol. (See: EEOC v Dial Corporation and Gillen v Fallon Ambulance Service).

The issue here is for the individual writing the test to get peer review of the written instructions. Have a trained evaluator – with no foreknowledge of the test – explain how to do the test based on nothing but the written documentation. It is important to do this with no verbal cues to the peer.

Lesson: Are the test instructions written in a fashion which supports a safety protocol and a separate work evaluation protocol? In other words, is the test administrator given clear guidance on which safety factors require cessation of testing?

Lesson: Does the test protocol allow the conditional employee to use his or her own innate method of movement or does it “over-instruct” such issues as how to move through awkward spaces or how to lift? If the conditional employee is not allowed to use his or her own style of exertion then the test violates the first commandant of testing: safety.

Lesson: If a test requires a definite cadence such a speed of lifting or speed of reaching, does the written protocol clearly explain that cadence. For example, if the job requires that a lift be performed every 50 seconds, does the protocol exceed that speed? If it does, then the test is invalid. (See: EEOC v Dial for a discussion of test instruction relative to lift frequency).

Example: Looking at a walk test, does the test require 100 feet of walking in a straight line within a certain period of time? If the layout of your clinic requires that the person change direction to achieve a 100 foot walk, does the test protocol adjust for the extra time required to pivot? (See: EEOC v. E.I. Du Pont Nemours & Company (Civil Action No. 03-1605))

Lack of appropriate response to a request for an accommodation during testing

A series of recent settlements have revolved around a request for accommodation during the testing process. Include in your documentation package a clear statement about the need to listen for and to respond to a request for accommodation.

Failing to secure medical information gained during an employment entrance examination

One of the most common misunderstandings about employment testing is the handling of confidential medical information. Here are two sections of the law that address this issue:

(3) Employment entrance examination

A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that

A second section reads:

(2) Preemployment

(A) Prohibited examination or inquiry

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination 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.

Lesson: The law if very clear. Only in extreme cases should an evaluator ask questions about an individual or his family in a way that may elicit a report of a disability. The hallmark of an extreme instance warranting such query would be in response to an observation of a safety issue during testing.

Lesson: Review your test package to ensure that training given to test administrators is recorded. When it comes time to defend your clinical practices in a particular post-offer test, this document will form your shield from liability.

The 9 Key Steps to a Defendable Post-Offer:

 Understand the Concept of Agency Relationship

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