Is Physical Capabilities Testing Always the Answer?
 Sept. 28, 2012

Work related injuries and employment practice issues go hand-in-hand. Routinely Patricia Eyres provides CMTA topical information relating to the challenges of meeting state and federal requirements pertaining to employment and disabilities. Patricia clearly outlines in the case referenced above, that physical capabilities testing and physical abilities testing have merits, but must be used judiciously. They can be problematic unless they address the specific physical requirements of the job. She strongly recommends having up to date job descriptions that reflect how the jobs in your manufacturing operation are performed at the time the testing or accommodation is considered.

Another concern is, can reasonable accommodations be made when evaluating the merits of a prospective employee? Ms. Eyres reminds us that employers must consider, during the hiring process, any reasonable accommodations that an applicant may need. This includes both accommodations that allow the applicant to participate fully in the pre-employment process and appropriate discussion of potential accommodations when discussing essential job functions. Much of the disability discrimination risk in the pre-employment phase stems from two problems: (1) not having a thorough discussion or analysis of "potential accommodations" on the front end, focusing on objective physical and mental job tasks; and (2) more significantly, refusing to consider or hire someone because the prospective employer "regards" him/her as disabled or too disabled to perform the job.

Perceptions that a disabled individual won't be able to perform job tasks are often very subjective and fail to look at the specific requirements of the job and the applicant's ability to perform them with or without accommodations.

Finally, you may need to remain attuned to limitations presented by a prospective employee. There is no clear answer on whether or not a job candidate must disclose that they may require an accommodation during the application process. This is a gray area. Applicants do not have to disclose the existence of a disability or the nature of that disability, or past injuries/workers’ compensation claims in the hiring process. And Ms. Eyres cautions prospective employers not to ask, unless they love lawyers. She points out that applicants do not have to disclose work restrictions or how they were accommodated in prior employment; certainly not at the pre-conditional offer phase. If the pre-employment process is handled appropriately, an applicant with a visible disability should have an opportunity to discuss how she/he performed similar essential job functions in the past, and this is a useful discussion.

Before using physical capabilities testing and physical abilities testing in the employment process we recommend you contact counsel. Having a clear understanding of how to appropriately use Physical Ability/Capability Testing is critical to avoiding legal problems that are currently growing out of their application in the hiring process.

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