ERGOSWork Simulator

Pre-employment & Post-offer Testing

under ADA

As more employers and governmental entities test new and returning employees, many have found the benefits 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 up to 40%. As a “fitness for duty” requirement, dramatically fewer injured workers are 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 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 allowed under the ADA. Testing is performed in most situations by an outside contractor to prevent the possibility or perception of pre-selection by the employer. Using a 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 the same protocol. 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.

How ERGOS® Tests an Applicant

ERGOS® has the ability to measure 17 physical demands defined by the U.S. Department of Labor objectively in five languages. Once the essential physical demands have been established by the employer, these can be set up as a testing protocol on ERGOS®. The protocol can then be provided to each applicant as part of the pre or post offer assessment. If need be, each applicant can be assigned an anonymous ID so there is no possible way to know the gender or ethnic identity of the applicant. This prevents the assertion that bias was used in the testing process. If the employer has a new plant or series of jobs to be filled and there is no history of physical demands that would allow an essential functions standard to be tested, ERGOS® can provide an appropriate initial standard using a database of over 17,000 jobs from the U.S. Department of Labor.

Once an applicant has been tested, ERGOS® immediately identifies whether he/she meets the essential standards. The employer can then make the decision whether the applicant passes or fails the test. This is important since only the employer can make this decision, not the testing agent.

ERGOS® was designed to meet all the standards required for a fair and objective applicant test. It has unique features not available with other assessment tools or systems. ERGOS® provides test instructions in a standardized written and auditory manner. Test instructions are presented at an eighth grade reading level in each of the five languages currently available. All Certified ERGOS® Evaluators have been trained to administer tests the same each time given. Each test is designed to assure that the applicant knows what is required before starting so there is no possibility of testing error or bias. Test instructions are structured to assure that the legal requirements for “informed consent” are met. As with all ERGOS® testing, only the applicant can make the test proceed so there can be no claims that the test subject was forced to perform anything without full knowledge of what is expected. The applicant must affirm each new instruction before proceeding with the test. All these features are designed to protect the employer and testing agent.

Test results are generated as soon as the test in completed. Results can be faxed to the employer or printed immediately for inclusion into the applicant’s file. Once the applicant becomes hired, the performance data is part of the medical record. This allows the employer the ability to review the actual physical demand strength of the new hire should future injury occur.

ERGOS® can also be used to assess an injured worker’s physical demands when returning to work. Using the same criterion for new hires, the employer can assure the returning worker is “fit for duty” after recovery and rehabilitation.

Official website of the ERGOS Work Simulator

Visitors from Europe can also go to http://www.wrebv.com/

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