Issue
The Equal Employment Opportunity Commission (EEOC) enforcement guidance states that an employer discriminates against a person on the basis of disability where an employer refuses to hire a person because it assumes (correctly or incorrectly), that, because of a disability, the employee poses some increased risk of occupational injury. Therefore, the employee is going to increase Workers’ Compensation costs.
Discussion
This was the issue for Baker Hughes Oilfield Operations. Their applicant, and then employee, Garrison was denied employment following his required post-offer medical exam that all new employees were required to undergo. Garrison filled out his medical history form and passed his medical exam without limitations. The company then obtained Garrison’s Workers’ Compensation records from his previous employer. His employment history was full of previous injuries to various joints of the body including his back, shoulder, knee and feet. Garrison failed to address any of these injuries in his medical history. Baker Hughes Company immediately rescinded his job offer. Garrison questioned the company as to why his job offer was rescinded. He was informed that the assembly line job “would put you in a position to likely be injured again and we don’t do that” Baker Hughes violated the Americans with Disabilities Act (ADA) by denying employment “on the basis of a disability or perceived disability” and used “unsubstantiated speculation about future risks from a perceived disability”.
Employers may not make this assumption.
The employer can refuse to hire the person only if it can show that his/her employment in the position posses a ‘direct threat’. This means that an employer may not ‘err on the side of caution’ simply because of a potential health or safety risk. Rather, the employer must demonstrate that the risk rises to the level of a direct threat. A direct threat is defined as a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. This determination is based upon an individualized assessment of, for example, an applicant’s present ability to safely perform the essential functions of the job.
Conclusion
Such an assessment could be an objective pre-employment strength test. Employers may avoid this risk by clearly establishing the physical demands of a job through a complete job task analysis performed by a Network Safety Consultant who will then match these physical demands to the physical capabilities of the applicant. This matching is best accomplished by objective, reliable and predictive pre-employment strength testing. The scientific matching removes the subjectivity and speculation and treats applicants fairly in compliance with the ADA.
This briefing is for informational purposes mostly and does not constitute a legal opinion. Contact your legal representative for information specific to your needs.
For more information regarding pre-employment strength testing, please contact Gary Glader, CSP, President, Network Safety Consultants, Inc., at 708.845.3662 or via e-mail at gglader@networksafetyconsultants.com. You can also find information about pre-employment strength testing at
www.thehortongroup.com/strengthtesting.
Source: Cost Reduction Technologies, Inc. (CRT)