---> TOC - May- 00

Pre Employment
Work Capacity Evaluations and Drug and Alcohol Testing

In Part I of the Special CSRMA Bulletin series on "Start to Finish Employee Preventative Maintenance Programs", the importance of detailed job descriptions both before and after hiring a person was examined.  In Part II, the pitfalls to avoid when interviewing applicants as well as the tools employer's have available to them to help select the right person for the job and for your organization were discussed.

 In Part III the additional steps every employer should take to help ensure that the right person is hired for the job is examined.  These additional steps are designed to reduce the very real liability exposures every employer faces when hiring a new employee.

Work Capacity Testing Programs:

Work capacity testing programs are often used to assess an applicant's ability to meet the physical requirements of the job.  They are designed to identify and exclude for hiring consideration those that may be at a high risk for injury and pose a direct safety threat to themselves or others. They are characterized by being more thorough than a standard pre-employment physical, which are generally incapable of detecting pre-existing injuries or existing risk factors that place the applicant in danger of further injury.  Finally, they establish pre-injury, baseline measurements that assist with rehabilitation and post-injury case management.

Evaluations typically include the following procedures:

• Pain Questionnaires
• Hand Testing
• Musculoskeletal Evaluation
• Body Mechanics
• Static Strength
• Testing Fitness & Endurance Testing
• Dynamic Strength Testing
• Physical Demand Level
• Occasional Material Handling
• Heart Rate Profile
• Frequent Material Handling
• Constant Material Handling
• Behavioral Profile
• Ergonomic Evaluation

However, as you can imagine, work capacity testing programs must be carefully implemented and administered to reduce potential liability and workers' compensation claims (see the September 1997 issue of the CSRMA Employment Practices Hotline Question of the Month).  For this reason, any work capacity testing should only be given after a job offer has been made, and should be conducted by an outside agency that uses registered physical and/or occupational therapists. 

Although this type of program can be very valuable, it needs to be carefully implemented and administered to reduce potential liability claims under the American with Disabilities Act (ADA), Workers' Compensation claims and general liability claims. 

ADA liability concerns

Although such testing can be valuable in determining whether a job applicant can perform the essential functions of the job for which he/she is applying, the EEOC takes the position that the employer may not conduct a physical examination until after a conditional job offer has been made to the applicant.   Requiring job applicants to perform work capacity testing is a type of physical examination and should only be done after a conditional job offer has been made. 

Workers' Compensation and General Liability concerns

There is no guaranteed way for members to entirely avoid workers' compensation liability for injuries sustained by applicants, even at the conditional offer of employment state.  Workers' Compensation laws define "employee" broadly and the Workers' Compensation Appeals Board will stretch to find an applicant/employee covered by workers' compensation laws.   To protect members from applicants sustaining injuries in the testing process and from potential workers' compensation and/or general liability exposures, an outside agency that provides this service such as NovaCare (several clinics throughout the state; call 1-800-770-NOVA for the nearest location) or Ability Works (Servicing all California; call (707)-648-7984) should be used.  Whatever agency the District chooses to use is fine, provided they make sure the agency is state-licensed or certified, is reputable in the industry, and that any contract between the District and the agency contain an indemnification clause protecting the District from potential liability injuries, negligence, etc. 

Pre-Employment Drug Testing

Drug testing in pre employment physicals has become a generally accepted practice.  Most employers can require an applicant, as a condition of hiring, to successfully pass a pre-employment examination that includes a drug screening. 

The Americans with Disabilities Act (ADA) of 1990 also places restrictions on the timing of any pre-employment physical exam.  The Act provides that a medical exam be required only after an offer of employment has been made and before the beginning of the applicant's duties.  However, a test to determine whether an applicant is illegally using drugs is not considered a medical exam. Therefore, if an employer wishes to conduct a drug test even before making a conditional offer of employment to an applicant, that test must be designed to identify illegal drugs and should not be performed in conjunction with any pre-employment physical exam. 

Reasons For Testing:

1. Negligent Hiring Liability – Employers are coming under increased scrutiny for "negligently" hiring and/or retaining employees whose criminal records, history of drug or alcohol abuse, or related problems involve an unreasonable risk of harm to others.  This is so particularly with employees whose work actions may affect the health and safety of both co-workers and the public (e.g. driving District vehicles). 

This liability is predicated on the negligence of an employer in placing persons with known propensities (or propensities that should have been discovered by reasonable investigation) in an employment position where, because of the circumstances of the employment, it should have been foreseeable that the individual posed a threat of injury to others.

An employer may be found to have been negligent in selecting an applicant for employment when, for example, the employer neglects to contact the applicant's former employers, verify any license or certificate requirements, or check references, where such investigation would have demonstrated that the applicant had a violent or criminal background or was otherwise unfit for the job.  Current law emphasizes the importance of a thorough investigation into an employee's background.  Where the employer knew or should have known of, or failed to use reasonable care to discover the employee's unfitness for a position before hiring him/her, employers generally have been held liable.

2. DOT drug testing requirements for applicants

3. To discourage drug use on and off the job by applicants (and employees)

Things to Remember:

1. Drug tests (unlike alcohol tests) are not considered medical exams under the ADA, and an applicant can be required to take a drug test (without a physical) before a conditional offer of employment has extended. Accordingly, employers cannot conduct blood or breath analysis until after a conditional offer of employment has been made.

2. Permit applicants to request a retest of the positive specimen at the same or another certified lab at their own expense.  Do not allow applicants to provide a new urine sample since drugs may have left their system by the time they provide the second specimen.

3. Ensure that the lab is NITA certified and can ensure proper Chain of Custody of the sample

4. Ensure confidential reporting procedures to avoid defamation claims and to comply with state confidentiality laws (single contact person, sealed records, no discussion of results or refusal to take test with anyone except key management personnel)

 

 Announcement

If You Have An Idea, Procedure, Product or Tool That Will Help Other CSRMA Members Protect the Environment or the Health and Safety of Their Employees, Please Send a Detailed Description and, Where Appropriate, a Picture to:

David Patzer, CSRMA Risk Control
500 Washington Street, Suite 300
San Francisco, CA 94111

And Your Suggestion May Be The Topic Of The Next

CSRMA

Above and Beyond Safety Bulletin!