Is Pre-Hire Physical Abilities Testing Legal?  It Depends.

Whenever we talk with companies about doing pre-hire/post-offer Physical Abilities Testing, one of the first questions we get is, “Is that legal?” or “I’ve heard that’s illegal.”

Our response is, “It’s legal…IF, and only IF you develop and implement it correctly.”

When it comes to defensible pre-hire testing, the “Devil’s in the Details” – quite literally.

What kind of details, you ask?

Well, here are five cardinal rules.

1. Conduct the tests after a conditional offer has been made.
2. Make the test job specific.
3. Don’t make your hiring decision based on any medical information gathered at the time of testing.
4. Make sure the testing is consistent from applicant to applicant.
5. Apply all test results consistently and fairly.

Why Post-Offer?

Because these tests can be considered medical exams, just by virtue of the fact that medical professionals administer them. And safe protocols include collecting heart rate and blood pressure as part of the testing procedures, also making it a medical exam. According to the Equal Employment Opportunity Commission (EEOC), employers cannot administer a medical exam pre-offer.

How do we make sure the test is job specific?  

The one and only way to make sure the test is adequately job specific is to perform detailed job analysis on the job. “Detailed” means knowing the following:

• percent of the day workers spend performing various physical requirements (sitting, standing, walking, lifting, carrying, etc.).
• weights being lifted.
• push/pull forces exerted.
• heights and distances over which those weights are handled,
• repetitions and durations of the physical requirements.
• dexterity, balance,and coordination requirements.
• environmental conditions.
• personal protective equipment (PPE) that is required.

How do we avoid making deci

sions on medical information?

Many employers mistakenly believe that if applicants have pre-existing conditions, they should not be hired. When in reality, not all pre-existing conditions are created equal. Not even diagnoses that have the same name are equal. One shoulder strain can be severe, hinging on a rotator cuff tear. In contrast, another is very mild and has resolved. If the pre-hire/post-offer Physical Abilities Test is a good one, only the applicants whose abilities are not up to the job requirements will fail, eliminating the need to know about the medical conditions. Not to men

tion the EEOC and Americans with Disabilities Act (ADA) prohibit employers from making hiring decisions based on medical diagnoses. If your pre-hire/post-offer Physical Abilities Test vendor is collecting medical information, it should be held in a secured database, for use for future comparison, only if the applicant is hired and goes on to sustain an injury.

How do we know if the test is being administered consistently?

Pay close attention to the process used by your testing vendor. Are the clinic(s) simply using a checklist of tasks to perform the test? Checklists can be interpreted differently by different clinicians. Unless the clinicians performing the tests have detailed instructions that cover the equipment, procedures, scoring rules, verbal instructions for the applicants, and training, the

re is a good chance that the test won’t be administered consistently.  Also, ask about the quality assurance that the company provides to ensure consistency in test administration and scoring.

What do you mean by applying the results consistently?

If you adhere to all of the above, but you don’t apply test results consistently, you’re still using pre-hire/post-offer testing illegally. Let’s say one applicant fails, and you rescind the offer (which is legal), but the next applicant who fails is the boss’s cousin, so you go ahead and hire him as a favor to your boss. You’ve just invalidated your entire program and made it illegal. Or let’s say you hire men that fail but not the women who fail (Yes, there are companies that do this – thankfully, few and far between.)  Then you’ve left yourself open to a huge cla

ss action suit, likely to cost you millions of dollars. You have to treat everyone equally when it comes to test results.

Let’s recap.

Pre-hire/post-offer Physical Abilities Testing is absolutely legal IF you follow the 5 cardinal rules above. The upside is that our clients who do this testing save, on average, 73% of their work comp costs involving injuries to new hires with an average 11:1 ROI. You really can’t afford not to do this. Just follow the rules to stay legally compliant.