Applicant & Employee Fitness For Duty Presented by: Jared H. Kaji, Director of Business Development

Experience Occu-Med has 35 years of employment medical evaluation experience: – Founded in 1979 as a research company designed to identify the cause of, and reduce the amount of workplace injuries. Medical and Legal experts on staff, in your office and around the globe.

Applicant Fitness For Duty Guidance for developing and administering a legally defensible and medically appropriate pre-placement medical evaluation program Goals Comply with the letter and intent of laws prohibiting discrimination (and avoid the financial liability for noncompliance) Lessen the probability of injury, illness, or the aggravation of existing disorders Reduce losses to Workers’ Compensation and disability retirement programs (as well as other health benefit programs)

Applicant Fitness For Duty Legal Considerations The Conditional Job Offer Pre-placement medical evaluations are only appropriate if: – Required as part of a conditional offer of employment; and – Conducted following the candidate’s acceptance of the conditional offer of employment

Applicant Fitness For Duty Legal Considerations Testing must be Job Related and Consistent with Business Necessity The California Fair Employment and Housing Act (FEHA) and the Federal Americans With Disabilities Act Amendments Act of 2008 (ADA/AA) provide that employer may only conduct medical inquiries that are job related and consistent with business necessity Lessen the probability of injury, illness, or the aggravation of existing disorders Tests that identify medical conditions or physical limitations that could interfere with safe job performance are legally appropriate Tests that identify medical conditions or physical limitations irrelevant to safe job performance are not legally appropriate The industry gold standard for determining how to medically evaluate candidates to particular job classes is to perform a Job Analysis

Applicant Fitness For Duty Legal Considerations Genetic Information Nondiscrimination Act of 2008 (GINA) GINA prohibits discrimination based upon genetic information Genetic information includes family medical history Do not request family medical history, or other genetic information, as part of a pre-placement medical evaluation

Applicant Fitness For Duty Legal Considerations Confidentiality Information from the medical examination must be treated confidentially Medical examination records must be maintained on forms and in medical files separate from the individual’s personnel file A completed and signed HIPAA-compliant release form should accompany any transfer of medical records

Applicant Fitness For Duty Legal Considerations Individualized Assessment The Americans With Disabilities Act (ADA) requires that candidates be provided with an Individualized Assessment – Black and white medical standards are not legally appropriate – Candidates found to have medical conditions that could interfere with safe job performance must be afforded the opportunity to undergo an Individualized Assessment » Specialist or sub-specialist medical opinion » Personal or treating physician input

Applicant Fitness For Duty Legal Considerations Reasonable Accommodation The Americans With Disabilities Act requires that employers make reasonable accommodations Accommodations are reasonable if: – Substantial risk of injury or harm is effectively mitigated; and – An undue hardship is not imposed Examples of Reasonable Accommodations: – Restructuring a job by reallocating or redistributing marginal job functions – Altering how/when an essential function is performed – Acquisition or modification of equipment/devices

Applicant Fitness For Duty Legal Considerations Undue Hardship To be considered an undue hardship, an accommodation must be unduly costly, extensive, substantial or disruptive, or one that would fundamentally alter the nature or operation of a business – The only finite definition of an undue hardship is an accommodation that would fundamentally alter the nature or operation of a business » Typically documented by the need for an employer to remove one or more of a positions essential job tasks in order for a candidate to be placed without risk of injury or harm

Applicant Fitness For Duty Legal Considerations Undue Hardship, continued… – Financial considerations can constitute an undue hardship, however simply citing financial hardship as the justification of an undue hardship is not legally defensible – Inability of the employer to effectively supervise or monitor an accommodation can justify an undue hardship

Applicant Fitness For Duty Legal Considerations Medical Disqualification Employers are not required to place a candidate if he or she is not able to safely perform the essential functions of the job offered to him or her, with or without reasonable accommodation From a legal perspective, employers should not place a candidate if he or she is not able to safely perform the essential functions of the job offered, with or without reasonable accommodation In accordance with the ADA, employers should offer candidates found to be medically disqualified an opportunity to participate in the Interactive Process

Applicant Fitness For Duty Legal Considerations Medical Disqualification, continued… The Interactive Process is the final step in rescinding a candidate’s job offer due to his or her inability to safely perform the essential job tasks of the position offered, with or without reasonable accommodation This meeting should cover: – The pre-existing medical condition or physical limitation of concern – Any work restrictions or accommodations that were considered and why they were determined to be ineffective or to impose an undue hardship – A final opportunity for the candidate to communicate alternative means for their safely performed the job offered

Applicant Fitness For Duty Job Information Job Information Accurate and valid job information is the foundation for a successful pre-placement medical evaluation program – Job information is the only resource for determining what, if any, medical conditions or physical limitations could interfere with safe job performance – Determining which medical tests to include as part of a pre-placement medical evaluation without this knowledge is a risky shot in the dark

Applicant Fitness For Duty Job Information Job Information, continued… Testing for conditions that would not interfere with safe job performance may result in an illegal invasion into your candidate’s privacy Failure to test for conditions that would interfere with safe job performance may result in the placement of a candidate that is predisposed to injury in the performance of his or her job

Applicant Fitness For Duty Medical Providers Medical Providers “Don’t ask your physician for legal advice, he (or she) will probably give it to you.” Jim Johnson, President & CEO of Occu-Med The role of the physician should be limited to performing the pre-placement medical examination and providing the employer with guidance on the candidate’s functional limitations

Applicant Fitness For Duty Medical Providers Selecting (or Evaluating) Your Medical Provider General criteria for evaluating your medical provider include: – Availability – Location – Facility Conditions – Testing Capabilities – Pricing – Turnaround Time – Impact / Efficacy – Legal Appropriateness of Services Provided

Applicant Fitness For Duty Medical Providers Turnaround Time Understanding the industry standard turnaround times for testing is a great way to evaluate how long it should take to complete a pre-placement medical examination – Day 1: Medical history questionnaire, physical examination, audiogram, vision and EKG results – Day 2: Basic laboratory results (complete blood count, blood chemistry, etc.) – Day 3-4: PPD (TB) skin test, treadmill stress test, radiology results – Day 5 and greater: Only specialized tests should take longer » Ask your provider how long each test result will take before agreeing to services

Applicant Fitness For Duty Medical Providers Impact / Efficacy The impact/efficacy of a pre-placement medical evaluation program is documented by the number of candidates required to correct medical conditions or physical limitations prior to being placed; the number of candidates placed with work restrictions or accommodations; and the number of candidates that were not placed.

Applicant Fitness For Duty Medical Providers Impact / Efficacy A program that rarely or never results in the above actions is likely not impactful relative to the goals of the program Caution is advised for programs that are inappropriately impactful (i.e., disqualifying candidates that are able to safely perform the essential duties of the job) A standard percentage of candidate impacted by Occu-Med’s program ranges from 30% to 60% Disqualifications comprise 0% to 4% for Occu-Med’s recommendations made to public and municipal agencies

Applicant Fitness For Duty Medical Providers Legal Appropriateness Your provider should be able to explain how they determine whether your candidates are or are not qualified for each of your jobs The Legal Considerations section of this presentation may be used as a checklist for this process

Employee Fitness For Duty General guidance for the performance of fitness-for-duty and return-to-work evaluations Goals Comply with the letter and intent of laws prohibiting discrimination (and avoid the financial liability for noncompliance) Lessen the probability of injury, illness, or the aggravation of existing disorders Reduce losses to Workers’ Compensation and disability retirement programs (as well as other health benefit programs) Combat abuse of Family Medical Leave Act and Workers’ Compensation benefits

Employee Fitness For Duty Legal Considerations Legal Considerations ADA and FEHA provide that an employer may require an employee to undergo a medical exam if it is job related and consistent with business necessity More specifically, to require a current employee to undergo a medical and/or psychological examinations for the purposes of determining whether or not the employee is fit for duty, there must be evidence that could cause a reasonable person to inquire if the employee is capable of performing his or her job

Employee Fitness For Duty Legal Considerations Legal Considerations, continued… Such as: – Diminished performance – Reported medical complaints – Observed symptoms of concern – Excessive absenteeism – Scheduled medical procedures Ninth Circuit Court: When health problems have had substantial impact on an employee’s job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose whether the employee is disabled or the extent of any disability.

Employee Fitness For Duty Legal Considerations Reasonable Accommodation Alternative Job Placement. If an employee is determined to be unable to safely perform the essential function of his or her job, with or without reasonable accommodation, the employer must consider alternative job placement into positions that are: – Available; and – For which the employee possesses the requisite knowledge, skills, qualifications and abilities.

Employee Fitness For Duty Best Practices Best Practices Do not request an employee to undergo a fitness-for-duty evaluation unless you have specific evidence: – The employee has difficulty performing one or more of the essential functions of his or her job; or – Other good cause (i.e., excessive absenteeism, poor productivity, etc.) Be consistent Retain a consultant

Contact Occu-Med: Jared H. Kaji Director of Business Development Phone: (559) x222 Fax: (800) URL: Q&A Sean Edin Director of Ancillary Medical Services Phone: (559) x123 Fax: (800)