Mitigating compliance risk with Physical Abilities Testing

[fa icon="calendar'] Nov 23, 2016 10:19:38 AM / by Deborah Lechner

Employers who are hiring for physically demanding jobs can mitigate the risks associated with hiring candidates that don’t have the physical abilities to do the job, through the use of pre-hire Physical Abilities Tests (PAT). The improper use of PAT, however, can lead to another type of risk: compliance. The Americans with Disabilities Act (ADA) and the Equal Employment Opportunity Commission (EEOC) specifically spell out the laws relating to these tools so that employers can be sure not to violate federal anti-discrimination laws. Some of the EEOC’s best practices include:

  • Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. A test vendor’s documentation supporting the validity of a test is critical. However, since the employer is still responsible for ensuring that the tests it uses are valid under the Uniform Guidelines on Employee Selection Procedures (UGESP), it’s critical that employers pick vendors with validated tests.

If a Physical Abilities Test screens out a protected group in disproportionate numbers, the employer should examine the root cause of the test failures. Which test item(s) on the PAT are causing most of the individuals in the protected class to fail the test? Is it the lifting tasks, or the squatting or the climbing? Or perhaps a combination of tasks? If the employer wants to hire more individuals in the protected class and eliminate the disparity, then conducting an ergonomics assessment to determine the ergonomic hazards and possible solutions can to eliminate or reduce the hazards may help to resolve the issue.     

Not following all of the best practices for utilizing a PAT can result in federal investigations, lawsuits and costly fines. But that should not deter a company from utilizing a pre-hire Physical Abilities Test because the benefits extend far beyond ADA and EEOC compliance. In fact, many studies have outlined the various perks an employer can experience with the implementation of a testing program. The evidence brought forth by one study strongly supports the use of pre-hire PAT: in 2003, Littleton tested physical plant applicants at a major university hospital and found a 78 percent decrease in total injury costs, an 18 percent decrease in lost day cases and an $18 savings for every $1 spent on pre-hire testing.

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The way an employer goes about implementing their pre-hire PAT – development to daily implementation – helps to mitigate compliance risk.

To achieve ADA compliance, employers cannot discriminate against potential hires with a disability, so an employer cannot test applicants on anything that is not an essential function of the job. For example, if the job requires the ability to lift 50 pounds of weight, the employer cannot require them to lift 60 pounds in order to pass the test. In other words, you cannot test people beyond what they have to do in the job, and the test has to be very job specific.

Additionally, the ADA and EEOC prohibit employers from performing pre-offer medical testing, which can become another cause of discrimination against a person with a disability. Cardiovascular tests, such as treadmill testing or step tests, and other examinations of heart rate and blood pressure are not EEOC compliant if used pre-offer. In addition, it is difficult to set valid passing criteria for these tests. As such, it is much better to put people through a series of job-related tests and monitor heart rate as part of the effort put forth instead of relying upon a standard treadmill or step test protocol.

Making sure a PAT is a valid measure of what the job entails is the whole idea of being ADA and EEOC compliant. For additional reference, the EEOC offers guidelines on achieving validity. Performing a detailed job analysis prior to developing the test is crucial for compliance with EEOC guidelines. Having a comprehensive and detailed list of the physical requirements of the job is the blueprint on which the screens must be based.

Another aspect of ensuring compliance is to make sure the test is performed consistently and the results are applied consistently across all applicants. This means every applicant who applies for a specific job has to get the exact same test. It is also important to be consistent with hiring decisions. Once the employer starts using a PAT, they should only hire those that pass and rescind the offer for those that fail. Often when companies are called out by federal agencies for compliance issues, it is because they hire some people who fail while rescinding the offer on most. 

One way to ensure validity and ADA/EEOC compliance is to turn to the experts when it comes to pre-hire PAT. At ErgoScience, our PAT is built from defensible, peer-reviewed research. We also conduct detailed job analysis that are the foundation upon which our tests are built. By utilizing a proven pre-hire screening test and working with an experienced vendor partner, an employer can take their first step towards creating a safer, more productive and less injury prone workforce.

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Topics: Legal Issues, Risk Management, Physical Abilities Tests

Deborah Lechner

Written by Deborah Lechner

Deborah Lechner, ErgoScience President, combines an extensive research background with 25-plus years of clinical experience. Under her leadership, ErgoScience continues to use the science of work to improve workplace safety, productivity and profitability.