Making Appropriate RTW and New Employment Decisions

1. Making Appropriate RTW and New Employment Decisions By: Brent Webber PT, CEAS II Date: 11/4/10

2. Get Ready for a Wild Ride!

3. ADA, EEOC and the Hiring Process

4. EEOC • The U.S. Equal Employment Opportunity Commission (EEOC) enforces the following laws relating to prework screening: • Title VII of the Civil Rights Act: prohibits employment discrimination based on race, color, religion, sex, or national origin • Title I and Title V of the Americans with Disabilities Act: prohibits employment discrimination against qualified individuals with disabilities in the private sector, state and local governments • Civil Rights Act: may provide monetary damages in cases of intentional employment discrimination

5. Direct Threat • Can disqualify an individual who is a “direct • threat” to health or safety of himself/herself • or others. • May not disqualify an individual with a • disability because of speculation that the • disability could cause the individual future • injury.

6. QUALIFIED INDIVIDUAL WITH A DISABILITY Definition: Person with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

7. Stay With Me

8. “REASONABLE ACCOMMODATION?" • Must be considered for a qualified person • with a disability • Any modification or adjustment to a job or • work environment that will enable a • qualified person to perform essential job • functions and enjoy equal employment • opportunity.

9. “REASONABLE ACCOMMODATIONS” • Accessible and usable facilities • Restructuring a job • Modifying work schedules • Modifying equipment • Buying equipment • Providing qualified readers or interpreters • Re-assigning a qualified person to another job • if they become disabled.

10. Accommodations may or may not result in hardship to an employer. If an undue hardship would result, the accommodation would not be required of the employer. Unduly costly Extensive Substantial Disruptive Would fundamentally alter the nature or operation of the business UNDUE HARDSHIP

11. Reasonable Accommodation

12. PRE-EMPLOYMENT, POST-OFFER MEDICAL EXAM Under the ADA, pre-employment medical tests may only be given after a conditional offer of employment has been made to a particular individual. An employer can condition employment on successfully passing that exam.

13. PRE-EMPLOYMENT, POST-OFFER EXAMS • Employer can condition employment on • successfully passing a medical exam and • make medical inquiries IF this is required • of all those entering the same job category • If the individual is not hired following the • medical exam, the reasons must be job • related and consistent with business • necessity. Employer must prove no reasonable accommodation was possible • if applicant is a qualified disabled • individual.

14. Uniform Guidelines on Employee Selection Procedures Discrimination defined: • The use of any selection procedure which has an adverse impact will be considered to be discriminatory unless the procedure has been validated in accordance with these guidelines, or the provisions of Section 6 of this part are satisfied.

15. Adverse Impact, Potential Discrimination • Validation studies investigate the potential for adverse impact during testing. • The Uniform Guide to Employee Selection notes that the use of any selection procedure which has an adverse impact on the hiring…… will be considered to be discriminatory. • Consultants should insure that individuals from various races, sex, and ethnic groups are included in prework screen development. • Failure analysis should be done to help assess the potential for discrimination and the need for alternative methods of selection.

16. The four-fifths 4/5ths rule • Selection rate for any race, sex, or ethnic group which is less than four-fifths (4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by federal agencies as evidence of adverse impact.

17. Non Discriminatory Work Environment

18. The Role of Functional Job Analysis and PWS in the Workplace

19. What is Functional Job Analysis? • Multi-stage process that involves • (1)observation • (2)on-site measurements • (3)validation by employees and management

20. Step 1: Observations • Observation is a crucial component to the process for many reasons • Realization of what employees actually do • Opportunity for recognition of process improvements • Always attempt to see several cycles of a job or job duties to note true frequency for rating purposes • Compare completed job questionnaires with observed work and question any discrepancies noted • Document all functional skills observed so that they can later be measured or verified

21. ESSENTIAL FUNCTIONS OF A JOB • How to identify: • Are employees in the job position required • to perform the function as part of the job? • Would removing the function fundamentally • change the job?

22. Very Different Essential Functions

23. DEFINITIONS US Dept of Labor Dictionary of Occupational Titles Physical Work Tasks The following is a list of physical/functional demands first based on the Dictionary of Occupational Titles and modified for use.

24. Step 2: On-site Measurements • Utilize a variety of tools including: various force gauges, tape measure, counter, stop watch, etc to objectively measure job requirements • Attempt at least 3 measurements when having employees demonstrate forces for sampling purposes and with 3 different employees where available

25. Step 2: On-site Measurements • Integrate observed frequency with specific questioning to establish time/duration ratings for workday • Again utilize job questionnaire to check for agreement with measured job duties and question employees about any discrepancies

26. On-site Measurements-Written Documentation • Document all findings with respect to frequency and specific measurements/forces • Frequency rating is done based on federal government format: • Rarely=1%-5% of day • Occasional=6%-33% • Frequently=34%-66% • Continuously=67%-100% • Document all pertinent vertical and horizontal parameters associated with lifts/carries/forces etc. • Separate forces that have a significant difference in frequency • List highest forces first

27. FREQUENCY OF WORK

28. Sedentary Work

29. Functional Job Description? • Once all of the measurements and observations are documented the resulting paperwork is known as a Functional Job Description (rough draft) • This documentation is itemized by functional category with frequency/force and other relative measurements listed within each category • Additionally, the essential functions of the job should be included in the initial portion of the FJD

30. Validation OF FJD • Once completed the FJD should be distributed to a sampling of the employees and management/supervisors at a minimum • Any areas of concern or suggestions for addition or deletion should be investigated and document the conclusion • At this point any errors found would be addressed and corrected with the above process repeated until all parties have validated the FJD with no concerns • This would result in “Validated” FJD

31. Does it Pass the “Sniff” Test

32. Potential Uses of Job Analysis

33. “Peace” of Mind

34. PWS • Functional PreWork Screening is designed to test potential workers on the physical components of the essential functions of a the job to see if they are capable of performing these functions safely.

35. PWS • This is a physical test/screen for all/some functional categories identified on the FJD • Testing parameters are based on researched protocols and or job specific replication of functions • Job specificity/replication is always best • Finished PWS must be validated by employees who perform the job • Same process as with validating FJD • Make changes as needed and retest until validated with no concerns

36. PWS • Should be done with new hires, return to work, transfers • Can be done in an hour or less • Applicant either meets or does not meet critical demands of the job • Deficiencies can serve as goals for treatment or point of recommendation for exercise prescription if done for RTW

37. ADA Issues • Provided all FJD and PWS are validated correctly and used consistently will hold legally • Must use annually calibrated equipment to establish credible measurements • Any changes in the job would necessitate a reevaluation of the FJD with possible changes in the PWS. Changes in the FJD/PWS would require a repeat of the validation procedure • Regular/Annual review validation recommended • Ultimate call with regard to reasonable accommodation lies in the hands of the doctor and industry based on FJD/PWS results along with other information

38. Determining the Need for PWS • Types of problems and injuries • Work areas and workers impacted

39. Focus Just a Little Longer

40. Functional Capacity Evaluation (FCE)

41. Functional Capacity Evaluation FUNCTIONAL: Meaningful, useful, purposeful activity that is actual work movement. Functional implies a definable, measurable movement with a beginning and an end. CAPACITY: Maximal safe ability/capability (AOTA, APTA). Capacity means the maximal safe function possible. EVALUATION: Systematic approach including observation, measurement, reasoning, and conclusion. Beyond monitoring and recording, evaluation implies there will be an outcome statement and, if appropriate, recommendations.

42. Dealing with Characters

44. Job Match Grid

45. WorkWell FCE v.2 Do You Really Need an FCE

46. When is Risk Assessment an Option?

47. Reasons Include • Risk recognition • Rotation development • Evaluate risk changes associated with new processes or equipment • Provide direction/initiatives for ergonomic team • Legal challenges of compensability • Diagnosis specific

48. Risk is Unique to Each Environment

49. Which Format to Use? • Standardized forms • REBA, RULA, WISHA, Moore Garg, BRIEF, NIOSH, etc. • Time study based • Muscle fatigue and recovery analysis • Need functional measurements or job data • Pictures of identified issues and possible video of processes useful

50. Outcomes • Identification as “high, medium, low” level of risk or tool specific risk levels • Identification of specific task and “low hanging fruit” for future ergonomic initiatives • Probability of causation in legal and diagnosis/pathology specific analyses