Did you know that some employers may be violating ADA requirements when performing safety tests for OSHA? This may include testing employees to ensure that they can perform certain physical functions of the job. This may also include taking adverse actions only against employees who have a disability. Employers need to be careful.
“Some employers have used pre-employment physical fitness tests and other exams to screen out applicants prone to ergonomic hazard injuries.” Tiffani H. Casey told us in a recent BLR webinar. The ADA, however, places limitations on employee testing.
“On the other hand, you’ve got OSHA, who affirmatively requires employers to monitor and test employees in a variety of situations to make sure that they can perform the job in a safe manner.” Casey continued. Employers have to balance these two competing goals—and it’s a delicate balance.
“If you’re doing employment testing and screening, and you’re trying to comply with OSHA with your testing, be sure that you’re not unintentionally violating . . . the prohibitions for ADA and employment testing.” Casey advised.
There are some limitations imposed by the ADA. For example, if the individual with a disability or a class of individuals with disabilities is screened out by a test or other qualification standard, then the employer must show that the test or standard is job related and consistent with business necessity and that the standard cannot be met with reasonable accommodation. While employers do need to ensure a safe workplace, they must strike this balance.
Another aspect of this issue is that many employers make the mistake of equating the risk of future injury (which could arguably be present in many circumstances) with a current safety hazard. In most instances, the risk of a future injury will not be enough to justify taking an adverse action (and as such, doing so would be violating ADA requirements). For a safety hazard to exist, it must be a current risk, not a potential risk.
Another ADA requirement for employers to keep in mind regards medical screenings. While employers may believe they are performing screenings to keep other employees safe, they must be sure that all medical inquiries and examinations are job related and consistent with business necessity as well. Failure to do so would also be in violation of ADA requirements.
For more information on staying in compliance with ADA requirements while keeping employees safe, order the webinar recording of “ADA vs. Safety: Don’t Let Safety Policy Undermine Disability Accommodations.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Tiffani H. Casey, Esq. is an associate in the Atlanta office of Fisher & Phillips, LLP. She advises employers in OSHA recordkeeping, hazard assessment and self-audits, corporate-wide safety compliance, maintaining effective safety training and safety management programs, disciplining unsafe employees, inspection preparedness, workplace violence prevention, and health and wellness initiatives.