EJF'S or Essential Job Functions: Are Your Job Descriptions Up To An OFCCP OR EEOC Audit?

[fa icon="calendar'] Aug 26, 2022 11:03:47 AM / by Deborah Lechner

Compliance with federal regulations is high on most organizations’ priorities. No one wants the distraction and hassle of a federal audit, and when one occurs, they want to be found to be in compliance. Not to mention the desire to avoid lawsuits or costly fines.

Regarding compliance with federal regulations related to employment practices, most are designed to eliminate discrimination against protected groups – especially women, ethnic groups, and individuals with a disability - in hiring, pay, and promotion.

The Role of the Office of Federal Contract Compliance Programs (OFCCP)

To prevent discrimination against individuals with disabilities, the OFCCP requires federal contractors to periodically review their jobs' physical and mental requirements. These periodic reviews of job qualifications ensure that employers do not screen out individuals with disabilities (unless strictly for job-related reasons) and that the job requirements are consistent with business necessities.

In March of 2022, OFCCP issued new regulations under Section 503 of the Rehabilitation Act. The change requires federal contractors to establish a schedule for reviewing the continuing appropriateness of the physical and mental job requirements.

Moreover, OFCCP’s new scheduling letter requires contractors to submit evidence of that review of job requirements in a desk audit. Item 22 of the Scheduling Letter requests:

Your most recent assessment of physical and mental qualifications,
as required by 41 CFR § 60-300.44(c)and § 60-741.44(c), including the
date the assessment was performed, any actions taken or changes made
as a result of the assessment, and the date of the next scheduled assessment
.”

These new rules have resulted in increased attention to job descriptions by Compliance Officers in desk audits. In almost every audit, Compliance Officers closely examine any physical or mental job requirements in job descriptions or job postings. 

Therefore, the physical and mental job requirements must be periodically updated to ensure that they are accurate and can survive this scrutiny during an OFCCP audit or investigation.

The Role of the Equal Employment Opportunity Commission (EEOC)

The EEOC requires all pre-hire/post-offer and return-to-work Physical Abilities Tests to be job-specific. And for that to happen, an employer must know the specific essential physical requirements of the job. Whereas OFCCP governs companies that are federal contractors. EEOC handles all companies regardless of their federal contracting.  

Even if employers are not conducting Physical Abilities Testing, they must make return-to-work decisions for employees who have had an injury or illness keeping them off work or on light duty. To do so without discrimination or bias, they must be able to compare the employee’s restrictions to the physical requirements of the job and decide if a reasonable accommodation can be made or if they need to put the employee on temporary light duty.

What is an Essential Job Function Analysis?

An Essential Job Function Analysis should include the essential tasks of the job. Essential functions are the primary job duties that an employee must be able to perform, with or without reasonable accommodation. Each job must be carefully examined to determine which functions or tasks are essential to job performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting, or firing).

Factors to consider in determining if a job function is essential include:

  • Whether the reason the position exists is to perform that function,
  • The number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • The degree of expertise or skill required to perform the function.

Your judgment as to which functions are essential and a written job description, including the details of the physical requirements, prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other evidence that EEOC considers includes:

  • the actual work experience of present or past employees in the job,
  • The time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • The terms of a collective bargaining agreement.

How is an Essential Job Function (EJF) Analysis used?

Once the results of an Essential Job Function Analysis are compiled into a report, that report can be used in a variety of ways to:

  • Write the job description,
  • Compose the job posting
  • Show to the job applicant at the time of job application.
  • Develop a pre-hire/post-offer Physical Abilities Test
  • Share with the physician who is making a return to work decision after illness or injury.
  • Develop a fitness for Duty or Return to Work Physical Abilities Test
  • Make reasonable accommodations
  • Develop a light-duty program
  • Guide a work conditioning program

Your entire hiring and injury prevention programs hinge upon knowing the physical requirements of the job and having those documented and periodically updated.

Who can perform EJFs?

Performing a sound, defensible EJF requires training and experience, and knowledge of performing a job analysis. Documenting the analysis results requires knowing the US Department of Labor’s definitions and classification system.

Not only the weights handled and the heights and distances over which they are handled must be documented, but the percent of day that a physical requirement is performed must be classified as Constant, Frequent, Occasional, or Never.

The dexterity, balance, and coordination requirements must be rated on a scale of 1-5. Environmental conditions, personal protective equipment, and tools/equipment are also important.

For the OFCCP, documenting your jobs' mental and cognitive requirements is also critical.

How often should it be repeated?

Everyone asks: “How often is ‘periodically’?” How often should we repeat the analysis? The OFCCP and EEOC do not specify how often jobs should be reassessed. In our experience, best work practices suggest every 2-3 years or whenever significant process changes occur.

Benefits of EJF Analysis

Not only does a properly executed EJF Analysis and the resulting EJF reports keep your organization in compliance with EEOC and OFCCP, but they also form the basis of your injury prevention and hiring processes. With clear, easy-to-understand EJF reports, you’ll communicate more effectively and accurately with applicants, employees, and medical professionals, enhancing your reputation as a best-in-class organization. And in today’s world of workforce shortage, it doesn’t hurt to be known as the “best place to work.”

Free EJF Workshop

ErgoScience is hosting a free workshop – “Essential Job Functions Are Your Job Descriptions Up to an EEOC or OFCCP Audit?”

Click here for more information.

 

Topics: Legal Issues, Job Analysis, Compliance

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.

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