Employment Testing: Test To An Individual’s Current Ability
Recently, I received a request from a clinical facility for input on a case which may be developing out West. Here is the gist of the message:
Yesterday afternoon an individual for whom we did a functional capacity screening a year ago stopped by the clinic. This was a pre-employment medical examination for a specific job in healthcare. (This potential employer also performs post-offer evaluations but has a policy of not testing their conditional hire employees.) During the examination the individual reported he did not think that he could do the job; the demands were fairly high. We reported the outcome of the test including the fact the individual had self-terminated secondary to concerns about safe ability to do the work. Not long ago, he had applied for a similar job at another healthcare facility. This second potential employer sent him for an evaluation at the clinic where he had applied last year. Because he was not a prospective employee of that company they agreed to perform the post-offer test. When the original clinic performed the test they included in the report that the person had been tested for them in the past. They also said that he did not qualify for the current position because he had failed the test for an identical position a year ago. This does not feel right to me on many levels. What is your opinion on this?
You intuition is correct on many levels. Here are my concerns, not necessarily in order of magnitude, and not a finite list:
- Were the two jobs really the same; did both companies have an essential function job description or job analysis?
- The outfit that did the second test erred by revealing information from a year ago. Title I of the ADA is clear that we need to deal with the individual’s current ability. If, during the testing process an accommodation is requested, then we deal with the existence of an impairment resulting in a current disability. If we test, we have to test the person’s current physical and cognitive abilities without attention to prior test results.
- If the group that did the second test revealed actual medical information to the new employer then they erred once again.
The way you report this situation may reveal yet another error: did the evaluating company make the decision that the individual should not be hired? That is not the preview of the evaluator or the physician. They can report the person was not able to safely execute the demands of the job, in this case without accommodation, but they should not act for the employer in “adverse decision” to not hire the person.
In 2008 Dillard’s paid a $2,000,000 settlement that involved the mishandling of medical information in relation to requests for leave. Apparently Dillard’s asked for diagnosis-related information at a time when Dillard’s did not need the information to make a decision about leave under FMLA or ADA Title I (see EEOC v. Dillard’s, Inc., et al). Possession of this “bad paper” was one factor considered in the EEOC complaint.
So, my non-legal opinion is your intuition is correct. Both healthcare facilities should have done independent evaluations of the conditional hire’s current ability to safely execute the physical and cognitive demands of the job based on the demands listed in an essential function job analysis. And, both companies should be much more careful about sharing, and retaining, information they never needed in the first place.
The regional attorney for the EEOC’s Los Angeles District Office stated: Policies and practices that permit medical inquiries without proof of a valid business necessity run afoul of the law, often having large-scale consequences. All employers should carefully examine their own policies and practices to ensure compliance with federal law.
Consent decrees often require companies to implement effective training for both supervisors and staff on the ADA and develop a centralized tracking systems for requests for job accommodations.
