As more employers and governmental entities test new and returning employees, many have found the benefits of pre-employment testing to be immediate and cost-effective. As a risk reduction strategy, ERGOS® pre and post offer testing lowers the lost time of new workers the first eighteen months of employment in excess of 40%. As a “fitness for duty” requirement, dramatically fewer assessed injured workers become re-injured. ERGOS® was designed to meet all the requirements now promulgated by the Americans with Disability Act (ADA). The developer of the ERGOS® testing methodology worked on the initial draft of the ADA legislation. Consequently, many of the ERGOS® assessment features are precisely designed to meet the legal requirements of the ADA.
The purpose of pre and post offer testing is to determine whether a job applicant can safely physically perform the essential demands of the job. ERGOS® objectively measures whether the applicant meets these requirements. The employer is required to objectively determine the essential physical demands of the job prior to testing with input from the existing workforce. Once the essential demands are quantitatively determined, a criterion based method of measure must be used to test whether the applicant meets the essential physical demands. This is important since normative testing is no longer meets the ADA standard. Testing is performed in most situations by an outside contractor provider to prevent the possibility or perception of pre-selection by the employer. Using an independent testing contractor also protects the employer from nuisance lawsuits claiming various forms of discrimination.
There are two approaches to employment testing under the ADA. Pre-employment testing is a personnel exam conducted by non-medically trained staff, and post-offer testing is a medical exam conducted by medical staff or allied health workers. Despite these differences, both tests may use identical protocols. The procedural differences are below.
Pre-employment testing
Under 42 U.S.C. § 12112 (d) (2) (A) and (B); 29 C.F. R. § 1630.13 (a) and § 1630.14 (a), a pre-employment test is not a medical exam and must be conducted by a non-medically trained evaluator. If the evaluator were medically trained, the applicant could claim that they have a conditional offer of employment since only conditional employees are offered a medical exam. There are risks to the evaluator since they are not allowed to measure any biological functions of the applicant when a pre-employment test is given. Conceivably, an applicant could be at risk for injury because of high blood pressure, osteoporosis, or a bulging disc and hurt themselves during testing if they did not reveal these risks beforehand.
Post-offer testing
Under 42 U.S.C. §12112 (d) (3); 29 C.F.R. § 1630.14 (b), a medical exam such as a post offer assessment can only be given after a conditional job offer has been made. Because it is a medical exam, it must be given by medical or allied health personnel. Biological functions such as blood pressure, heart rate, respiration and range of motion can be measured as part of the assessment. Enforcement of pre and post offer testing under the ADA are set forth by the EEOC with guidelines listed in the publication “Pre-employment Disability-Related Questions and Medical Examinations,” Number 915.002 (Oct. 10, 1995).
Reasonable accommodation
Because the ADA requires an employer to make reasonable accommodations to allow an individual with a disability to perform the essential functions of the job (42 U.S.C. § 12112 (b) (A)), this must be factored in both the pre and post offer test. Unless it is considered an undue hardship, the employer must make reasonable accommodation to the applicant who identifies that they have a disability requiring such. To protect both the employer and the testing agent, it is suggested that a written document stating the purpose of the test be presented to the applicant for signature during orientation. The document should also state the specific physical requirements of the job being tested by ERGOS®. The form should also ask the applicant whether they will need reasonable accommodation for performing any of the functions listed in the physical requirements. If the accommodations requested by the applicant are not feasible, the applicant should be asked if there are any alternative accommodations. If alternatives are not possible, then testing is not possible. These procedures need to be in place prior to testing.