Considering Physical Ability Testing Here are the Legal Issues

EMPLOYMENT LAWS Title VII of the Civil Rights Act of 1964 Age Discrimination Act of 1967 Uniform Guidelines on Employee Selection Procedures – 1978 Americans With Disabilities Act

Uniform Guidelines on Employee Selection Procedures CFR-20 Chapter 60-3 US Department of Labor Established in Designed to comply with Federal law prohibiting employment practices which discriminate on the grounds of race, color, religion, sex, and national origin (B) Apply to tests and other selection procedures which are used as a basis for any employment decision (B)

Uniform Guidelines (cont.) Employment decisions include but are not limited to hiring, promotion, demotion, membership, referral, retention, licensing, certification (does not apply to recruitment) (B) The use of any selection procedure that has an adverse impact on the hiring, promotion, or other employment opportunities of members of any sex, age, or ethnic group will be considered to be discriminatory unless it has been validated or the provisions of section 6 of this part are satisfied (A)

The use of Selection Procedures which have not been validated Use of Alternative selection procedures to eliminate adverse impact. Alternative procedures should eliminate the adverse impact in the total process. When validity Studies cannot/need not be performed Use selection procedures which are as job related as possible and which minimize or eliminate adverse impact.

The use of Selection Procedures which have not been validated (Continued) Where informal or un-scored procedures are used; Which has an adverse impact, modify the procedure to a formal, scored or quantified measure or combination of both, then validate. Where formal and scored procedures are used; When a user cannot or need not validate the test, the user should modify the procedure to eliminate the adverse impact or justify continued use of the test in accord with Federal Law

LEGAL REQUIREMENTS Job Relatedness Essential Job Functions Reasonable Accommodation Objective Testing Predictive of Job Performance VALIDATION

(A) Unacceptable Substitutes for Evidence of Validity n Marketing material n A letter from an Attorney stating validity n Validity documents for other jobs or employers n Job task analysis n Anything other than a proper Validation document

VALIDATION DOCUMENTATION How the jobs physical demands were analyzed A detailed description of the test battery How the tests measure the physical abilities of an individual A review of alternative tests that might reduce Adverse Impact B How the pass/fail criteria relate to job requirements How the test battery is intended to be used Steps taken to assure accuracy and completeness

Validation Studies (Three Types) General Standards for Validity Studies Criterion-related Validity Content Validity Construct Validity

Case Studies n EEOC v Dial Corporation Why was the test not validated n Indergard v Georgia-Pacific Corp What makes a test a medical exam

Job Analysis and Test Design Perform Detailed Onsite Analysis Determine Strength, Endurance, Postural/Agility Demands Recommend Worksite Redesign Define Essential Functions Develop Job-Specific Test Battery with Essential Pass/Fail Criteria

Have you seen this guy?

Strength Tests Dynamic Lifts Static Lifts

Energy Expenditure Determination

IMPLEMENTATION PROCESS Detailed Job analysis Worker survey to confirm essential functions Test battery and pass/fail criteria proposed Test battery reviewed and approved by employer Testing initiated EEOC documentation completed Evaluation of program effectiveness at one year

RETURN ON INVESTMENT Example Calculation $550,000/100 = $5500 average cost/injury 100 x 30% injury reduction = 30 injuries saved 30 x $5500 = $165,000 cost savings 1000 x 30% turnover = 300 annual hires + (20% fail) 360 x $100 = $36,000 testing costs $165,000 - $36,000 = $129,000 net cost savings $165,000/$36,000 = 4.5 to 1 ROI

Appropriate Industry Types Distribution – Retail Merchandise, Grocery, Beverage, Furniture, etc. Transportation – Trucking, Airlines, etc. Manufacturing – Steel, Large parts or components

Other Industry Possibilities Hospitals – Patient lifting Nursing Homes – Patient lifting Ambulance/EMT – Patient lifting Fire Departments/Training Academy – Lifting and Cardiovascular demands Utility/Public Works – Lifting and Cardiovascular demands Others – Is lifting > 35lbs? Do workers fatigue?

Appropriate Types of Jobs Significant strength demands – i.e. lifting > 35lbs. Frequent whole body movements = endurance demand Essential specific posture/agility demands – climbing, confined space, CPR 15 or more employees in job title

Job Analysis and Test Design Detailed analysis – weigh, measure, observe, define essential physical demands Heart rate monitors used for endurance demand – 15 workers per job title Average 1 to 2 days onsite – may need to return for more heart rate data Design job-specific test and proposed pass/fail criteria

Summary Summary You Should Now Know At Least The Following Things About Physical Abilities Testing

Uniform Guidelines on Employee Selection Procedures CFR-20 Chapter 60-3 US Department of Labor The use of any selection procedure that has an adverse impact on the hiring, promotion, or other employment opportunities of members of any sex, age, or ethnic group will be considered to be discriminatory unless it has been validated.

Steps n #1 Ask the person who developed or will develop the test, If the test is validated according to the Uniform Guidelines? n #2 Ask them to furnish the validation document n #3 Ask for adverse impact documentation

(A) Unacceptable Substitutes for Evidence of Validity n Marketing material n A letter from an Attorney stating validity n Validity documents for other jobs or employers n Job task analysis n Anything other than a proper Validation document

In Closing The face of the American workforce has changed over the last 20 years. You may be hiring your next injury. To protect your company, you can test applicants for physically demanding jobs such as materials handling, etc. Employers can test New Hire applicants and refuse to hire those who fail a physical ability test that is based on the job. Testing can also be done for Return to Work, Transfers and Annual Fitness Reviews.

AEI Contact Information Jim Briggs, OTR/L Vice President of Business Development Ext Cell