I Should Have Seen That Loss Coming...
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There are certain sentences that, as a risk manager, you NEVER want to say.
“I should have seen that one coming” definitely qualifies.
So the question becomes, if you knew something was inevitable, as a risk manager, isn’t it your job to prevent that very work-related incident? The answer is “yes." Unfortunately, the answer is the easy step. The challenging piece is identifying a solution. To add insult to injury, assume this risk is one that requires hiring a person physically able to perform a job. The EEOC directives indicate that you can't disparagingly discriminate, and the ADA requires you to consider whether a candidate can perform the essential job functions. If your candidate assures you he can perform the physical aspect of the position, what other screening can be done? A fit-for-duty examination is the answer. It's critical that fit-for-duty is executed in accordance with ADA and EEOC guidelines, as well as any of state laws that may be applicable.
Below are two key steps that can be taken to ensure you're hiring employees capable of performing their job duties and not disparagingly discriminating:
- Identify the essential functions of the position, which should include:
-Assessment of essential functions
-Validation of the assessment
- Post-offer/pre-placement fit-for-duty evaluations
-Validated job-specific functionality testing
To ensure you are ADA compliant you must ensure all disability-related inquires and medical examinations of employees must be job-related and consistent with business necessity. There are three stages referred to by the ADA: pre-offer, post-offer and during employment, when accessing when evaluations can be conducted.
- Pre-offer – Any disability related inquires or medical examinations are prohibited at this stage
- Post-offer – Disability related inquiries and medical exams are allowed as long as there is consistency (i.e., everyone entering the same position is asked the same questions)
- During Employment - Based on “job-related and consistent with business necessity” In this stage it's critical that your company policy as well as the basis for this evaluation be documented. Consistency is critical.
Once your program is established, managing the outcomes remains as critical as the implementation. When managing outcomes this should include:
Communication from testing facility to employer:
- Should involve only those who “need to know”
- Recommend facility advises whether the employee can or cannot perform the physical demands of the job
- As a side note, the candidate may request a reasonable accommodation under ADA. If this request is made, the employer is then obligated to explore this option.
If there's a withdraw of conditional offer of employment:
- The employer must be able to demonstrate the reason for the withdraw
- This withdraw can't be based on unsubstantiated speculation of future risk of injury
Policy for Re-Testing
There are circumstances where candidates (based on medical questionnaire or initial screening) are unable to complete the fit-for-duty evaluation based on an un-treated condition. Fit for duty policies need to include a process in which the candidate is advised by the provider of the reason for non-testing and given the opportunity to get the condition addressed, so that they can re-test.
With a successful fit for duty program “I should have seen this coming” should be one phrase that can be eliminated, not to mention the losses that will be avoided.
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