Considering Physical Ability TestingConsidering Physical Ability TestingHere are the Legal IssuesHere are the Legal Issues

EMPLOYMENT LAWS

Title VII of the Civil Rights Act of 1964

Age Discrimination Act of 1967

Uniform Guidelines on Employee Selection Procedures – 1978

Americans With Disabilities Act - 1992

Uniform Guidelines on Employee Selection Procedures CFR-20 Chapter 60-3US Department of Labor

Established in 1978.

Designed to comply with Federal law prohibiting employment practices which discriminate on the grounds of race, color, religion, sex, and national origin. 60-3.1 (B)

Apply to tests and other selection procedures which are used as a basis for any employment decision.60-3.2 (B)

Uniform Guidelines (cont.)

Employment decisions include but are not limited to hiring, promotion, demotion, membership, referral, retention, licensing, certification (does not apply to recruitment). 60-3.2 (B)

The use of any selection procedure that has an adverse impact on the hiring, promotion, or other employment opportunities of members of any sex, age, or ethnic group will be considered to be discriminatory unless it has been validated or the provisions of section 6 of this part are satisfied. 60-3.3 (A)

60-3.6 The use of Selection Procedures which have not been validated

Use of Alternative selection procedures to eliminate Use of Alternative selection procedures to eliminate adverse impact.adverse impact. Alternative procedures should eliminate Alternative procedures should eliminate the adverse impact in the total process.the adverse impact in the total process.

When validity Studies cannot/need not be performedWhen validity Studies cannot/need not be performedUse selection procedures which are as job related as Use selection procedures which are as job related as

possible and which minimize or eliminate adverse possible and which minimize or eliminate adverse impact.impact.

60-3.6 The use of Selection Procedures which have not been validated (Continued)

Where informal or un-scored procedures are used; Where informal or un-scored procedures are used;

Which has an adverse impact, modify the procedure to a Which has an adverse impact, modify the procedure to a formal, scored or quantified measure or combination of formal, scored or quantified measure or combination of both, then validate.both, then validate.

Where formal and scored procedures are used; Where formal and scored procedures are used; When a When a user cannot or need not validate the test, the user should user cannot or need not validate the test, the user should modify the procedure to eliminate the adverse impact or modify the procedure to eliminate the adverse impact or justify continued use of the test in accord with Federal justify continued use of the test in accord with Federal Law Law

LEGAL REQUIREMENTS

Job Relatedness Essential Job Functions Reasonable Accommodation Objective Testing Predictive of Job Performance “VALIDATION”

60-3.9 (A) Unacceptable Substitutes for Evidence of Validity Marketing material Marketing material A letter from an Attorney stating validityA letter from an Attorney stating validity Validity documents for other jobs or employersValidity documents for other jobs or employers Job task analysisJob task analysis Anything other than a proper Validation Anything other than a proper Validation

documentdocument

VALIDATION DOCUMENTATION 60-3.15 How the job’s physical demands were analyzed A detailed description of the test battery How the tests measure the physical abilities of an individual A review of alternative tests that might reduce “Adverse Impact” 60-3.3 B How the pass/fail criteria relate to job requirements How the test battery is intended to be used Steps taken to assure accuracy and completeness

Validation Studies (Three Types) 60-3.5 General Standards for Validity Studies

Criterion-related Validity

Content Validity

Construct Validity

Case Studies

EEOC v Dial CorporationEEOC v Dial Corporation

Why was the test not validated Why was the test not validated

Indergard v Georgia-Pacific CorpIndergard v Georgia-Pacific Corp

What makes a test a medical exam What makes a test a medical exam

Job Analysis and Test Design

Perform Detailed Onsite Analysis Determine Strength, Endurance, Postural/Agility Demands Recommend Worksite Redesign Define Essential Functions Develop Job-Specific Test Battery with Essential Pass/Fail Criteria

Have you seen this guy?

Strength Tests

Dynamic Lifts

Static Lifts

Energy ExpenditureDetermination

IMPLEMENTATION PROCESS

Detailed Job analysis Worker survey to confirm essential functions Test battery and pass/fail criteria proposed Test battery reviewed and approved by employer Testing initiated EEOC documentation completed Evaluation of program effectiveness at one year

RETURN ON INVESTMENT

Example Calculation$550,000/100 = $5500 average cost/injury100 x 30% injury reduction = 30 injuries saved30 x $5500 = $165,000 cost savings1000 x 30% turnover = 300 annual hires + (20% fail)360 x $100 = $36,000 testing costs$165,000 - $36,000 = $129,000 net cost savings$165,000/$36,000 = 4.5 to 1 ROI

Appropriate Industry Types

Distribution – Retail Merchandise, Grocery, Beverage, Furniture, etc.

Transportation – Trucking, Airlines, etc.

Manufacturing – Steel, Large parts or components

Other Industry Possibilities

Hospitals – Patient lifting Nursing Homes – Patient lifting Ambulance/EMT – Patient lifting Fire Departments/Training Academy – Lifting

and Cardiovascular demands Utility/Public Works – Lifting and Cardiovascular

demands Others – Is lifting > 35lbs? Do workers fatigue?

Appropriate Types of Jobs

Significant strength demands – i.e. lifting > 35lbs.

Frequent whole body movements = endurance demand

Essential specific posture/agility demands – climbing,confined space, CPR

15 or more employees in job title

Job Analysis and Test Design

Detailed analysis – weigh, measure, observe, defineessential physical demands

Heart rate monitors used for endurance demand – 15workers per job title

Average 1 to 2 days onsite – may need to return for moreheart rate data

Design job-specific test and proposed pass/fail criteria

SummarySummary

You Should Now Know At Least You Should Now Know At Least The Following Things AboutThe Following Things AboutPhysical Abilities TestingPhysical Abilities Testing

Uniform Guidelines on Employee Selection Procedures CFR-20 Chapter 60-3US Department of Labor

The use of any selection procedure that has an adverse The use of any selection procedure that has an adverse impact on the hiring, promotion, or other employment impact on the hiring, promotion, or other employment opportunities of members of any sex, age, or ethnic group opportunities of members of any sex, age, or ethnic group will be considered to be discriminatory unless it has been will be considered to be discriminatory unless it has been validated.validated.

Steps 1-2-3

#1 Ask the person who developed or will develop #1 Ask the person who developed or will develop the test, “If the test is validated according to the the test, “If the test is validated according to the Uniform Guidelines?” Uniform Guidelines?”

#2 Ask them to furnish the validation document#2 Ask them to furnish the validation document

#3 Ask for adverse impact documentation#3 Ask for adverse impact documentation

60-3.9 (A) Unacceptable Substitutes for Evidence of Validity Marketing material Marketing material A letter from an Attorney stating validityA letter from an Attorney stating validity Validity documents for other jobs or employersValidity documents for other jobs or employers Job task analysisJob task analysis Anything other than a proper Validation Anything other than a proper Validation

documentdocument

In Closing

The face of the American workforce has changed over the last 20 The face of the American workforce has changed over the last 20 years. You may be hiring your next injury. years. You may be hiring your next injury.

To protect your company, you can test applicants for physically To protect your company, you can test applicants for physically demanding jobs such as materials handling, etc. demanding jobs such as materials handling, etc.

Employers can test New Hire applicants and refuse to hire those who Employers can test New Hire applicants and refuse to hire those who fail a physical ability test that is based on the job. Testing can fail a physical ability test that is based on the job. Testing can also be done for Return to Work, Transfers and Annual Fitness also be done for Return to Work, Transfers and Annual Fitness Reviews.Reviews.

AEI Contact Information

Jim Briggs, OTR/LVice President of Business Developmentjim.briggs@advancedergonomics.com1-800-682-0169 Ext 445 615-594-4070 Cell