William Charles, Ltd.

Smart Hiring Protocol

Why “smart hiring”?

– In 2003 William Charles had an employee who worked for us for 27 hours..his back injury claim closed out in 2004 for $175,000, almost $6,500 per hour for a pre-existing condition

– Increase in median age of the workforce-by 2010, 51% of the labor force will be age 40 or older. 78 Million Baby Boomers with oldest turning 67

– Declining health-prevalence of obesity and diabetes have significantly increased

– Declining workforce-10% decrease in 35-44 year old labor force between 2000 and 2010

– Decrease in retirement certainty-causing people to work longer

– Increase demand for productivity-with employers giving equal emphasis to cost savings

– Increasing health care costs

– Increasing workers compensation costs-both direct costs and indirect costs

• The question becomes..how can we hire the right people?

Steps William Charles has taken to minimize exposure:

1. Post-Offer MVR Review

Post Offer MVR Review - Driver Evaluation Form

Company ___________________________________________________________________________

Name: ___________________________________________ Date: _____________________________ Instructions 

•1.      Review the employee's MVR and assign appropriate points for each violation in the score box. 

A. Number of Accidents (within the last 3 years) Points Score_____ None 0 __________ 1 1 __________ 2 2 __________ 3 5 _____

 B. Major Violations (within the last 3 years)

_____ None 0 __________ Hit and run, leaving the scene of an accident 6 each __________ Driving under the influence of alcohol or drugs 6 each __________ Any felony, homicide, or manslaughter involving 6 each _____

use of a motor vehicle_____License suspension or revocation 6 each __________Implied consent refusal (refusal to take blood alcohol test) 6 each __________Racing or excessive speeds (20 mph over limits) 4 each __________Reckless, negligent, or careless driving 4 each __________Speeding 2 each _____

 C. Moving Violations (within the last 3 years)

_____ None 0 __________ 1 or 2 1 each __________ 3 and over 1 each _____

 TOTAL Score ________

 Grading: 

Best 0-1 Average 2-3 Questionable 4-5 Poor Over 5 

Completed by: _____________________________________

Post-Offer Continued:

• 2. Post Offer Drug Test

• 3. Post Offer CDL Physical (if required)

• 4. Post offer Comprehensive Test:» WorkSTEPS

– “This is a 1.5 to 2 hour test. Medical questions and several medical tests are included to objectively quantify pre-existing conditions and cumulative traumas to determine their effect upon “significant and impending” risk as it relates to the position in question.”

WorkSteps Program FUNCTIONAL JOB DESCRIPTION/ANALYSIS  Company Name: William Charles – Rockford Blacktop

Date of Analysis: 11-2004Analysis by: Rex D. Brown, MS EPCompany Representatives: Casey Long, Safety Coordinator EMPLOYER AGREEMENT: The information in this analysis is an accurate representation of the physical demands of this specific job. _______________________________________ _____________________________________Employer Representative Date Provider Representative Date

Job Title Small Paver Laborer – Composite Crew Training Requirements: No experience required, on the job training Does job require team members? Yes – work with crew of laborers, operators, driversRotation of shifts? NoRotation of duties? NoWork/Shift hours: 1 shift: 9 hours per day, 45 hours per weekNumber of days/week: 5 days per weekOvertime? Yes, 5 hours per week; May thru ThanksgivingBreaks: Taken at slow-down in work or when travelingStructure: Hourly wage   Skill Requirements (ie. Reading/writing, math, language, time management/ meeting deadlines, meeting standards, etc.)   1.        Must be able to communicate with other laborers, operators, and the foreman regarding placement of hot-mix in the appropriate areas2.        Must be able to estimate the appropriate amount of hot mix to shovel or rake into position3.        Must be able to communicate with the use of a radio in the truck4.        Must understand and demonstrate driving rules of the road and general traffic5.        Must have basic understanding of numerical order for determining/finding addresses6.        Must be able to understand and read maps for specific locations7.        Must meet production deadlines and the application of hot mix within the appropriate time8.        Must be aware of traffic, workers, and moving equipment9.        Must follow all rules of safety as defined by the employer and required by all applicable regulations 

Page 2 – Job Description: Rockford Blacktop, Small Paver Laborer – Composite Crew Cognitive Demands M O F C

General Educational DevelopmentReasoning XMathematical XLanguage XData (synthesizing, coordinating, analyzing, compiling, computing, copying, comparing) XPeople (mentoring, negotiating, instructing, supervising, diverting, persuading, speaking, Xsignaling, serving, helping)Things (setting up, precision work, operate/control, operate/drive, manipulating, tending, Xfeed/off-bearing, handling) Directing, controlling, and/or planning activities for others XPerforming repetitive and/or short cycle work XInfluencing peoples opinions, attitudes, and judgments XPerforming a variety of duties XExpressing personal feelings XWorking alone or apart in isolation from others XPerforming effectively under stress XAttaining precise set limits, tolerances, and standards XWorking under specific instructions XDealing with people X

(M=marginal; O-occasional; F=frequent; C=constant) Duties/Task Description(s) R O F C

Shoveling – the worker will use a shovel to move hot-mix from a large pile into an area the Xpaver (heavy equipment) is unable to maneuver. Raking – using aluminum handled rake, the worker pushes and pulls hot-mix into position for Xthe best grading, where the paver missed a spot or overloaded a spot. The worker also uses a standard rake to move stone into appropriate position.Tamping Hot-Mix – the worker is required to use a tamper to flatten hot-mix into positions Xthe paver is not able to maneuver. The tamper is also used to shape and form the hot-mix into shape for making the finished edges.Marking Lines – the worker is required to mark designated areas with a spray paint gun/wand. XCleaning Tools/Equipment – the worker is required to clean their tools using a diesel sprayer. XLoading/unloading truck – the worker is required to load/unload the equipment they need to Xuse in/out of the light-duty truck bed.Driving – the worker may need to operate a light-duty vehicle/pick-up truck to drive to/from Xother jobsites.

(R=rare; O-occasional; F=frequent; C=constant)

Page 3 – Job Description: Rockford Blacktop, Small Paver Laborer – Composite Crew 

Work Pace Description (include terms like consistent, variable, etc.)

The work pace can vary from continuous working to taking several short breaks waiting for trucks to bring hot-mix. Traveling also varies from driving/riding for a few minutes to up to 1-2 hours.

Machinery/Tools/Equipment (include safety equipment and apparel) ITEM (weight in pounds) R O F CEquipment/ToolsShovel (< 5 lb.) XRake (<5 lb.) XBroom (<5 lb.) XTamper (20 lb.) XCompactor (120-158 lb.) XFuel Cans (40 lb.) XDiesel Sprayer (<25 lb.) XPropane Tank (<25 lb.) XWater Hose (<10 lb.)

Safety EquipmentHeavy Boots (wt. negligible) XSafety Vest (wt. negligible) X

(R=rare; O-occasional; F=frequent; C=constant)

Work Environment SITUATION: specifics N R O F CUnprotected heights: XMoving Equipment: trucks, paver, roller, skid loader, general roadway traffic XChanges in Temperature: outdoors early Spring thru late Fall XHumidity: outdoors early Spring thru late Fall XDust: road dusk from gravel, dirt, etc. XFumes/odors: hot-mix and heavy equipment/traffic exhaust XGases: exhaust from heavy equipment/traffic XChemicals: hot-mix and diesel fuel XRadiation: NA XToxic waste: NA XExplosives: NA XWorking indoors (include % of day): 0% XWorking outdoors ( “ “ ): 100% X

(E=essential; M=marginal; N=never; R=rare; O-occasional; F=frequent; C=constant) 

KEY: Never = Not at all (0 hr.) Rarely (maximum) = 1- 5% of the work day (0.5 hr)

Occasionally (heavy) = 6-33% of the work day (3 hr.)Frequently (moderate) = 34-66% of the work day (5.5 hr)Continuously (light) = 67-100% of the work day (8 hr)

Material Handling

Percentage of the Workday (8 hr.)Material Handling Item/Describe/Weight Capacity in Pounds Rt/Lt 0 1-5 6-33 34-66 67-100 (E=essential / M=marginal)

Floor to waist 2-arm lift XFloor to waist 1-arm lift Right X

Left X12” to waist lift 60-79 lb. 25 lb. Rare lift would include team lift

of compactor; Occasional lift is for sprayer/fuel cans

Waist-level lift XFront carry <5 lb. Carry shovel, rake, broomShoulder carry XSide 1-arm carry Right Up to Fuel can, sprayer, propane tank

Left 25 lb.Waist to shoulder lift XAbove shoulder lift XPushing 35 lb. Push force when using rake to

push hot-mix into position; push compactor

Pulling 5 lb. Pull force when using rake to pull hot-mix into position; pullcompactor

Page 4 – Job Description: Rockford Blacktop, Small Paver Laborer – Composite Crew 

Driving/Transporting NA/Yes/No Explain/Describe

Does worker load/unload? Yes Equipment out of light truckIs regular job long or short hauls? NA Travel from a few minutes to <1 hourTypical driving hours without interruption? < 1 hourSeat type: Bench style pick-up seatAutomatic transmission? YesPower steering? YesTeam Driving? Yes Driver for the crew may vary

Page 5 – Job Description: Rockford Blacktop, Small Paver Laborer – Composite Crew

Functional Positions/Activities

Percentage of the Workday (8 hr.) Functional Positions 0 1-5 6-33 34-66 67-100 Specific TaskRepeated squat X ShovelingSustained deep squat XRepeated forward bend in stand X Shoveling, raking, sweeping, tampingSustained forward bend in stand X Shoveling, raking, sweeping Repeated forward bend in sit XSustained forward bend in sit XTwist/Rotate in stand X Shoveling in limited spaceTwist/Rotate in sit X neck Driving, watching for trafficSustained kneel XCrawl XStep up/step down X Back of truck, curb, uneven surfaceClimb X TruckClimb ladder XShoveling/scooping X Hot-mixThrowing X Hot-mix with shovelReach forward X Shoveling, raking, sweeping, tampingReach to side XReach overhead XSustained elevated reach XRepetitive reach with shoulder(s) X Shoveling, raking, sweeping, tampingBalance X Walking, standing, climbingSit continuously XSit intermittently XStand continuously XStand intermittently XWalk continuously XWalk intermittently XWalk – uneven/slippery ground X Unfinished pavement, curbingTalking/communicating XHearing XTasting/Smelling XSeeing - Far (>20 feet) X Near (<20 inches) X Mid Range X Depth Perception X Field Viewing X

Page 6 – Job Description: Rockford Blacktop, Small Paver Laborer – Composite Crew

Hand/Wrist/Upper Extremity Use

Specific Function Left Right Specific Task Simple grasp Yes Yes Handling toolsFine manipulation No NoMedium dexterity Yes Yes Handling toolsForearm/Wrist rotation No NoPower grip Yes Yes Handling toolsPalm-down Grasp No NoPush/pull Yes Yes Shoveling to sides, raking, sweepingBi-manual dexterity Yes Yes Handling rake and shovelUse of power tools No NoUse of non-power tools Yes Yes Shovel/rake, broom, tamperPounding or Vibration Yes Yes TampingRepetitive Actions/ Reaches Yes Yes Handling tools

Post-offer: WorkSTEPs

• Ask medical questions

• Perform medical and functional evaluations

– “Baseline” Full Body Musculoskeletal Eval

– Computerized Joint Test

» Compares strength

» Compares endurance

» Identifies ligament tears

» Checks consistency of effort

» May look at any joint in body

• Expand scope of evaluation and refer if needed

• Require safe performance of job related functions

• Give capable/not capable recommendations

August 29, 2005  William Charles: Rockford Blacktop, Small Pavers Crew4920 Forest Hills Rd.Loves Park, IL 61111 RE: Joe Doe (Composite Crew Laborer)

Completed evaluation at 10:45am Dear Lynn Ulrich, Summary of Test Results We offer you the following opinion concerning the individual’s present abilities to safely and

successfully perform the essential functions of the position for which he/she was tested:_X__ IS CAPABLE of performing the essential functions of the position sought and does not

have any present or past medical condition/impairment that we believe would pose a significant risk to him/herself or others should he/she be placed in the position sought.

____ NOT CAPABLE of performing the essential functions of the position sought and does not have any present or past medical condition/impairment that we believe would pose a significant risk to him/herself or others should he/she be placed in the position sought.

____ NOT CAPABLE of performing the essential functions of the position sought because applicant does have a present or past medical condition/impairment that we believe would pose a significant “medical risk” to him/her or others should he/she be placed in the position sought.

  Basis for conclusion While we are available to discuss in more detail the basis for our finding, the following

additional information provides the basis for the above conclusion: The client was deemed “Capable” as he met all testing criteria of the medical history, the

dynamic lifting, and the job specific demands.   

August 29, 2005Page 2  Summary of Test Procedures and Principles As part of the test, we obtained a medical history of the individual and collected baseline data concerning the individual’s physical conditioning and specific functional limitations. The primary purpose of the test, however, was to evaluate: 1) the individual’s ability to successfully perform the job related essential functions of the position sought: and 2) whether there was objective medical evidence that performance of the job related essential functions would pose a risk to the health or safety of the individual or others. The test was conducted based on our understanding of the job related essential functions of the position sought by this individual and the traditional physical demands associated with performance of those essential job functions. Our test is designed to assist employers in making an individualized assessment as to applicants’ and employees’ qualifications consistent with legal principles set forth in the Americans with Disabilities Act (“ADA”). The ADA prohibits covered employers from denying employment opportunities to otherwise qualified individuals with disabilities who can perform, with or without reasonable accommodation, the job related essential functions of the positions sought or held. The ADA also permits employers to adopt qualification standards that employees not pose a direct threat of harm to themselves or others. Currently, the U.S. Equal Employment Opportunity Commission defines “direct threat” as a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation. If necessary, appropriate, and requested, we are available to engage in further examination, testing, or discussion with the individual noted above, to ensure that you have accurately assessed his/her qualifications for employment with your company. For example, in assessing whether a direct threat exists, the ADA requires employers to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Depending on the nature of the medical condition/impairment identified in our test, the risks posed by the position sought, and the scope of protection afforded by state law, it might be appropriate and/or necessary for your company to engage in an interactive dialogue with the individual being tested to explore potential reasonable accommodations that would facilitate safe and successful performance of essential job functions.  We hope this evaluation has been helpful. Please contact me if you have any questions. Sincerely, Rachel K. Viel, M.S., P.T., C.W.C.E.

June 13, 2005 William Charles: Marengo Disposal4920 Forest Hills Rd.Loves Park, IL 61111 RE: John Doe (Residential Driver)

Completed evaluation at 5:30pm Dear Lynn Ulrich, Summary of Test Results We offer you the following opinion concerning the individual’s present abilities to safely and successfully perform the essential functions of the position for which he/she was tested:____ IS CAPABLE of performing the essential functions of the position sought and does not have any present or past medical condition/impairment that we believe would pose a significant risk to him/herself or others should he/she be placed in the position sought._X__ NOT CAPABLE of performing the essential functions of the position sought and does not have any present or past medical condition/impairment that we believe would pose a significant risk to him/herself or others should he/she be placed in the position sought.____ NOT CAPABLE of performing the essential functions of the position sought because applicant does have a present or past medical condition/impairment that we believe would pose a significant “medical risk” to him/her or others should he/she be placed in the position sought.  Basis for conclusion While we are available to discuss in more detail the basis for our finding, the following additional information provides the basis for the above conclusion: The client was deemed “Not Capable” for the following: does not meet dynamic lifting demand requirements for floor lift or 12” lift.  

June 13, 2005Page 2

 Summary of Test Procedures and Principles As part of the test, we obtained a medical history of the individual and collected baseline data concerning the individual’s physical conditioning and specific functional limitations. The primary purpose of the test, however, was to evaluate: 1) the individual’s ability to successfully perform the job related essential functions of the position sought: and 2) whether there was objective medical evidence that performance of the job related essential functions would pose a risk to the health or safety of the individual or others. The test was conducted based on our understanding of the job related essential functions of the position sought by this individual and the traditional physical demands associated with performance of those essential job functions. Our test is designed to assist employers in making an individualized assessment as to applicants’ and employees’ qualifications consistent with legal principles set forth in the Americans with Disabilities Act (“ADA”). The ADA prohibits covered employers from denying employment opportunities to otherwise qualified individuals with disabilities who can perform, with or without reasonable accommodation, the job related essential functions of the positions sought or held. The ADA also permits employers to adopt qualification standards that employees not pose a direct threat of harm to themselves or others. Currently, the U.S. Equal Employment Opportunity Commission defines “direct threat” as a significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation. If necessary, appropriate, and requested, we are available to engage in further examination, testing, or discussion with the individual noted above, to ensure that you have accurately assessed his/her qualifications for employment with your company. For example, in assessing whether a direct threat exists, the ADA requires employers to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. Depending on the nature of the medical condition/impairment identified in our test, the risks posed by the position sought, and the scope of protection afforded by state law, it might be appropriate and/or necessary for your company to engage in an interactive dialogue with the individual being tested to explore potential reasonable accommodations that would facilitate safe and successful performance of essential job functions.  We hope this evaluation has been helpful. Please contact me if you have any questions. Sincerely, Lester Walt Rebman, P.T.

Results to Date:

APRIL 2005 TO PRESENT:

Total Tested 342

Not Capable 19

Incomplete 6

Capable 317

Within the WorkSteps program, 7% fail Job performance criteria, the further north you go the higher the % is due to colder weather

Immediate Benefits/Future Benefits

• Hiring capable person for specific position

• Detailed Job Descriptions used for hiring, modified r-t-w and r-t-w

• Prevention of pre-existing injury exposure

• Injury management if injury does occur, early intervention

• R-T-W program/Fit for Duty /Modified Duty

• Baseline information

• Less exposure for medical costs, disability

Orthopedic Rehab Orthopedic Rehab SpecialistsSpecialists

William Charles William Charles & &

WorkSTEPSWorkSTEPS®®

Featuring the Featuring the WorkSTEPS® WorkSTEPS® Employment Testing SystemEmployment Testing System

What is WorkSTEPSWhat is WorkSTEPS®®??

Functional Employment Functional Employment Testing:Testing:

A system of ADA compliant employment tests A system of ADA compliant employment tests designed to prevent injuries, control injury designed to prevent injuries, control injury

related costs, and combat fraudulent related costs, and combat fraudulent claims.claims.

Growth in PopularityGrowth in PopularityWorkSTEPS®WorkSTEPS®

Employment Testing Employment Testing Successfully:Successfully:

IdentifiesIdentifies persons who have pre-existing persons who have pre-existing cardiovascular, degenerative, or cardiovascular, degenerative, or cumulative trauma disorders.cumulative trauma disorders.

IdentifiesIdentifies persons who do not meet job persons who do not meet job specific strength and/or aerobic specific strength and/or aerobic requirements.requirements.

AssistsAssists employers in appropriately employers in appropriately matching current and new employees to matching current and new employees to safe/ appropriate job positions.safe/ appropriate job positions.

CollectsCollects baseline physical baseline physical measurements for comparative analysis measurements for comparative analysis post injury or trauma.post injury or trauma.

Employment Testing Employment Testing Successfully:Successfully:

Allows determination of objective Allows determination of objective physical/functional loss.physical/functional loss.

Qualifies legitimate injuries and Qualifies legitimate injuries and disqualifies fraudulent injuries.disqualifies fraudulent injuries.

Expedites rehabilitation and return-Expedites rehabilitation and return-to-work post legitimate injury.to-work post legitimate injury.

Allows successful medico-legal Allows successful medico-legal intervention comparing an intervention comparing an employee’s pre-injury and post-employee’s pre-injury and post-injury status.injury status.

Employment Testing Employment Testing Can:Can:

Significantly Significantly ReduceReduce Workplace Workplace Injury Incidence,Injury Incidence,

ReduceReduce Workplace Injury Costs, Workplace Injury Costs, ReduceReduce Lost Time, Lost Time, Legally Empowers the Employer,Legally Empowers the Employer, Creates Accountability For Creates Accountability For

Employees & Treating Providers.Employees & Treating Providers.

University of University of MassachusettsMassachusetts 10% of the American work force is 10% of the American work force is

physically not capable of physically not capable of performing their jobs.performing their jobs.

75% of work-related injuries occur 75% of work-related injuries occur among this same 10%.among this same 10%.

Pareto Analysis (80/20 rule)Pareto Analysis (80/20 rule)

Types of Compensable Types of Compensable Claims:Claims:

97% of companies – back injuries.97% of companies – back injuries. 81% of companies – carpal tunnel 81% of companies – carpal tunnel

syndrome.syndrome. 77% of companies – repetitive 77% of companies – repetitive

motion injuries.motion injuries.

Reference: Risk & Insurance®, Reference: Risk & Insurance®, Human Executive® Magazine.Human Executive® Magazine.

Cost of ClaimsCost of Claims(National Council on Comp (National Council on Comp

Insurance)Insurance)

One Carpal Tunnel… One Carpal Tunnel… 29K, Indemnity.. 29K, Indemnity..100K100K

One Back Sprain…One Back Sprain… 24K, Indemnity.. 24K, Indemnity..100K100K

One Fraudulent Claim.. 20-60K, One Fraudulent Claim.. 20-60K, Replacement.. 75KReplacement.. 75K

Carpal TunnelCarpal Tunnel(Work Comp Advisor – June (Work Comp Advisor – June

1998)1998) ½ of CTS cases occur in the first ½ of CTS cases occur in the first

year of employment.year of employment. 15% occur in the first 3 months of 15% occur in the first 3 months of

employment.employment. 34 lost days/case avg.34 lost days/case avg.

OSHA Return on Investment OSHA Return on Investment Calculation:Calculation:

One Injury Direct Costs…One Injury Direct Costs… 29K 29K Net Profit Margin…Net Profit Margin… 10%10% Additional Sales Needed to cover costs.. Additional Sales Needed to cover costs..

Approx: Approx: $300,000$300,000

www.osha.govwww.osha.gov

Work Comp Nightmares:Work Comp Nightmares:

Don’t know overall condition of new Don’t know overall condition of new hires (baseline).hires (baseline).

Don’t have policies to get functional Don’t have policies to get functional data post-injury.data post-injury.

Don’t have consistency/reliability Don’t have consistency/reliability checks/ inappropriate illness behavior checks/ inappropriate illness behavior tests.tests.

Don’t have objective medical evidence to Don’t have objective medical evidence to support return to work (RTW) position.support return to work (RTW) position.

Continued increasing premiums/costs Continued increasing premiums/costs and decreased productivity. and decreased productivity.

Company Profits Affected Company Profits Affected By:By:

Injury claims and health care Injury claims and health care costs.costs.

Insurance premiums.Insurance premiums. Workers’ Compensation costs.Workers’ Compensation costs. Claims management costs.Claims management costs. Disability settlements.Disability settlements. Legal costs to manage claims.Legal costs to manage claims.

Compliance With Compliance With Employment Employment

LawLaw

(EEOC)(EEOC)

Can An Employer Deny Can An Employer Deny Employment To An Individual Employment To An Individual

Without Liability Under Without Liability Under Federal Anti-Discrimination Federal Anti-Discrimination

Laws?Laws?

YES!!YES!!

FOR TWOFOR TWO REASONS REASONS

1.1. If The Employee Cannot If The Employee Cannot Perform Perform The Essential Functions Of The Essential Functions Of The Job.The Job. “ “An employer is not required to hire or retain an An employer is not required to hire or retain an individual who cannot perform the ‘essential individual who cannot perform the ‘essential functions’ of a job.” (EEOC TAM 4.4)functions’ of a job.” (EEOC TAM 4.4)

THE EMPLOYER MUST CONSIDER:THE EMPLOYER MUST CONSIDER:

““Standards for employment must be job-Standards for employment must be job-related and consistent with business related and consistent with business necessity.”necessity.”

If an individual is disabled, he/she may be If an individual is disabled, he/she may be entitled to a reasonable accommodation in entitled to a reasonable accommodation in order to perform the essential functions.order to perform the essential functions.

2.2. Such An Individual Is In Such An Individual Is In Direct Direct Threat Of Harm.Threat Of Harm.

““An employer is not required to hire or retain an An employer is not required to hire or retain an individual who would pose a ‘direct threat’ to individual who would pose a ‘direct threat’ to health or safety.” (EEOC TAM 4.4)health or safety.” (EEOC TAM 4.4)

THE EMPLOYER MUST SHOW:THE EMPLOYER MUST SHOW:

Substantial risk of imminent harmSubstantial risk of imminent harm Actual risk, not speculativeActual risk, not speculative No availability of reasonable accommodationNo availability of reasonable accommodation Such an individual is in direct threat of harm (if Such an individual is in direct threat of harm (if

disabled)disabled) (EEOC TAM 4.5)(EEOC TAM 4.5)

Americans with Disabilities Americans with Disabilities Act (1990):Act (1990):

Title 1 Title 1 prohibits prohibits employment employment discrimination discrimination against against qualified qualified individuals individuals with with disabilities.disabilities.

LEGAL COMPLIANCELEGAL COMPLIANCE

CAN EMPLOYMENT TESTING BECAN EMPLOYMENT TESTING BE

SUPPORTED UNDER THE ADA?SUPPORTED UNDER THE ADA?

“ “An employer may ask an applicant to An employer may ask an applicant to demonstrate how, with or demonstrate how, with or

without reasonable accommodation, without reasonable accommodation, the applicant will be able to perform the applicant will be able to perform

job related functions.”job related functions.”

Types Of Employment Types Of Employment TestsTests

Pre-Offer (Agility)Pre-Offer (Agility) Post-Offer/Pre-Placement (Most Post-Offer/Pre-Placement (Most

Flexibility)Flexibility) Post-Employment (Current Post-Employment (Current

Employees)Employees) Functional Capacity Evaluation Functional Capacity Evaluation

(Post-Injury - Workman’s Comp (Post-Injury - Workman’s Comp Claims)Claims)

Post-Offer / Pre-Placement Post-Offer / Pre-Placement TestTest

(New Hire) Must Be:(New Hire) Must Be: Job related to the position in Job related to the position in

question.question. Consistent with business Consistent with business

necessity.necessity. Required of all employees Required of all employees

entering similar positions in the entering similar positions in the same geographic proximity.same geographic proximity.

Title 1 – Post-Offer Allows Title 1 – Post-Offer Allows Employer To:Employer To:

Fail applicants who do not meet Fail applicants who do not meet strength and/or aerobic strength and/or aerobic requirements for the job in requirements for the job in question.question.

Fail applicants with a quantified Fail applicants with a quantified medical condition that would medical condition that would make them unsafe for the make them unsafe for the position in question.position in question.

Functional Testing Functional Testing Provider Can:Provider Can:

Ask medical questions / detailed history.Ask medical questions / detailed history. Ask about braces and conditions.Ask about braces and conditions. Perform medical and functional tests.Perform medical and functional tests. Expand scope of test and refer if needed.Expand scope of test and refer if needed. Require safe performance of job related Require safe performance of job related

functions.functions. Give recommendations regarding Give recommendations regarding

employment capability.employment capability.

Reason to Withdraw Offer Reason to Withdraw Offer of Employmentof Employment

Fail post-offer drug test.Fail post-offer drug test. Lie on medical history (post-offer).Lie on medical history (post-offer). Cannot lift enough weight to “safely” qualify Cannot lift enough weight to “safely” qualify

for the position sought.for the position sought. Fail any part of job specific tests.Fail any part of job specific tests. Are disabled and can’t perform functions with Are disabled and can’t perform functions with

or without a reasonable accommodation.or without a reasonable accommodation. Poor attitude.Poor attitude. Have a quantified medical condition making Have a quantified medical condition making

them unsafe.them unsafe. History of worsening re-injuries in the same History of worsening re-injuries in the same

line of work.line of work.

Overall Testing ResultsOverall Testing Results(National Average):(National Average):

7% fail job performance criteria.7% fail job performance criteria. 10-15% do not return for drug or 10-15% do not return for drug or

employment test.employment test. 15-28% require medical clearance to 15-28% require medical clearance to

continue:continue:– High blood pressureHigh blood pressure– Recent auto accidentRecent auto accident– Significant medical historySignificant medical history– Disabled and did not ask for Disabled and did not ask for

accommodation before arriving for testaccommodation before arriving for test– Demonstrates serious medical or disease Demonstrates serious medical or disease

problemsproblems

What about our What about our existing workers?existing workers?

Our aging workforce?Our aging workforce?

Fit For Duty (Existing Fit For Duty (Existing Employee)Employee)

EEOC TAM V1-12EEOC TAM V1-12““The need for the exam may be The need for the exam may be

triggered by some evidence of triggered by some evidence of problems related to job problems related to job performance or safety, or … to performance or safety, or … to determine whether individuals in determine whether individuals in physically demanding jobs physically demanding jobs continue to be fit for duty.” continue to be fit for duty.”

78 Million Baby Boomers with 78 Million Baby Boomers with thethe

Oldest Now Turning 61 Oldest Now Turning 61 (2007). (2007).

20 40 60

Age

Physical

Demand

Capability

Physical

Demand

Of Job

- Can you identify currently employed individuals who are at significant risk of injury?

Purpose of Fit-For-Duty Purpose of Fit-For-Duty Testing:Testing:

Help identify/classify the risk with Help identify/classify the risk with specific individualized goals to specific individualized goals to prevent injury.prevent injury.

Allows disability determination Allows disability determination with safe functional limits.with safe functional limits.

Discovers disease process. Discovers disease process.

Fit-For-Duty Fit-For-Duty Post Work-Related Injury:Post Work-Related Injury:

““Under the ADA, medical information Under the ADA, medical information or medical exams may be required or medical exams may be required when an employee suffers an injury when an employee suffers an injury on the job. Such an exam may be on the job. Such an exam may be required when an employee wishes required when an employee wishes to return to work after an injury or to return to work after an injury or illness, if it is job related and illness, if it is job related and consistent with business necessity.”consistent with business necessity.”

Fit-For-Duty (non work-Fit-For-Duty (non work-related) related)

Following Injury or IllnessFollowing Injury or Illness To determine extent of disability.To determine extent of disability. To determine reasonable To determine reasonable

accommodation.accommodation. To determine job capability.To determine job capability.

Returning to Work Returning to Work After Injury or Illness:After Injury or Illness:

You reserve the right to fill modified duty You reserve the right to fill modified duty positions with temporarily injured positions with temporarily injured employees.employees.

You may require RTW in ____ days or show You may require RTW in ____ days or show significant progress or have medical layoff.significant progress or have medical layoff.

After all efforts/resources have been After all efforts/resources have been exhausted, you may terminate employees exhausted, you may terminate employees at MMI who can’t perform the essential at MMI who can’t perform the essential functions (unless FMLA applies). However, functions (unless FMLA applies). However, you need to demonstrate effort to you need to demonstrate effort to accommodate (approximately a 6 month accommodate (approximately a 6 month process).process).

Court CasesCourt Cases

How do I get started with How do I get started with functional employment functional employment testing?testing?

(Selecting a protocol/provider)(Selecting a protocol/provider)

Employment Testing Employment Testing Procedures…Procedures…

MUSTMUST be based on objective be based on objective measurement.measurement.

MUSTMUST be reliable. be reliable. MUSTMUST be defensible. be defensible.

Essential Components of Essential Components of an Effective Standardized an Effective Standardized

Test:Test: Job AnalysisJob Analysis Medical HistoryMedical History Scientific Strength TestsScientific Strength Tests Essential Function TestingEssential Function Testing Medical Tests to Determine Medical Tests to Determine

Significance of Risk for Common Significance of Risk for Common AilmentsAilments

Measure Extent of Pre-Existing Measure Extent of Pre-Existing Condition(s)Condition(s)

Job Site Analysis/Essential Job Site Analysis/Essential FunctionsFunctions

Job Site AnalysisJob Site Analysis

Weigh and measure objects.Weigh and measure objects. Document force requirements for Document force requirements for

hands, back, etc.hands, back, etc. Measure aerobic requirements / Measure aerobic requirements /

repetitions.repetitions. Document static and dynamic Document static and dynamic

posture requirements.posture requirements. Create job specific tests (content Create job specific tests (content

validity).validity).

Employment Testing Should Employment Testing Should Include:Include:

Medical History,Medical History, Cardiovascular Screening,Cardiovascular Screening,

CARDIOVASCULAR

ASSESSMENTRisk Profile

Blood PressureHeart Rate

Recovery Rate

Employment Testing Employment Testing Should Include:Should Include: Medical History,Medical History, Cardiovascular Cardiovascular

Screening,Screening, Complete Complete

Musculoskeletal Musculoskeletal Exam, including…Exam, including…

… … Posture AssessmentPosture Assessment

Employment Testing Should Employment Testing Should Include:Include:

Medical History,Medical History, Cardiovascular Screening,Cardiovascular Screening, Complete Musculoskeletal Exam,Complete Musculoskeletal Exam, Upper Extremity Screen,Upper Extremity Screen,

Employment Testing Should Employment Testing Should Include:Include:

Medical History,Medical History, Cardiovascular Screening,Cardiovascular Screening, Complete Musculoskeletal Exam,Complete Musculoskeletal Exam, Upper Extremity Screen,Upper Extremity Screen, Static Strength Testing, Static Strength Testing,

Employment Testing Should Employment Testing Should Include:Include:

Medical History,Medical History, Cardiovascular Screening,Cardiovascular Screening, Complete Musculoskeletal Exam,Complete Musculoskeletal Exam, Upper Extremity Screen,Upper Extremity Screen, Static Strength Testing,Static Strength Testing, Dynamic Strength Testing,Dynamic Strength Testing,

Employment Testing Should Employment Testing Should Include:Include:

Medical History,Medical History, Cardiovascular Screening,Cardiovascular Screening, Complete Musculoskeletal Exam,Complete Musculoskeletal Exam, Upper Extremity Screen,Upper Extremity Screen, Static Strength Testing,Static Strength Testing, Dynamic Strength Testing, Dynamic Strength Testing, Job Specific Testing.Job Specific Testing.

Baseline Baseline EstablishmentEstablishment

(Apportionment) (Apportionment)

Which One Is Normal?Which One Is Normal?

Is Employment Is Employment Testing Cost-Testing Cost-

Effective?Effective?

Employment Testing Employment Testing CostsCosts

One in ten workers statistically is One in ten workers statistically is at risk of injury.at risk of injury.

Testing ten workers x Testing ten workers x $250$250 per per test will cost the employer test will cost the employer $2500$2500..

If one in ten workers is injured, If one in ten workers is injured, how much do you think that one how much do you think that one injury will cost the employer?injury will cost the employer?

Will it be more than Will it be more than $2500$2500??

Four Questions To Ask Four Questions To Ask Any Any Employment Test Employment Test Provider…Provider… Do they provide employment testing Do they provide employment testing

with a “Pass/Fail” (Capable/Not with a “Pass/Fail” (Capable/Not Capable) report?Capable) report?

Have they ever FAILED anyone on an Have they ever FAILED anyone on an essential job task?essential job task?

Have they ever stopped a fraudulent Have they ever stopped a fraudulent claim with objective data?claim with objective data?

Do they assume financial responsibility Do they assume financial responsibility for the validity of their testing format?for the validity of their testing format?

DON’T HIRE DON’T HIRE YOUR NEXT YOUR NEXT

CLAIM!CLAIM!

Sample Case Sample Case StudyStudy

34 Year Old Male34 Year Old Male History of a neck injury resulting in History of a neck injury resulting in

multi-level cervical fusion and multi-level cervical fusion and permanent nerve damage in right UEpermanent nerve damage in right UE

History of shoulder reconstruction with History of shoulder reconstruction with permanent loss of ROMpermanent loss of ROM

History of 4 knee reconstructionsHistory of 4 knee reconstructions History of bilateral Carpal Tunnel History of bilateral Carpal Tunnel

SyndromeSyndrome Wouldn’t you want to know my medical Wouldn’t you want to know my medical

history & limitations before hiring me?history & limitations before hiring me?

REMEMBER!REMEMBER! WORK COMPWORK COMP Law Law Assumes:Assumes:

Employees are perfect when Employees are perfect when hired,hired,

Employees never grow old,Employees never grow old, Whatever may be wrong with the Whatever may be wrong with the

employees, the employer caused.employees, the employer caused.

**

*(it was 2 left *(it was 2 left feet)feet)