EQUAL OPPORTUNITY EMPLOYMENT, DISABILITIES AND OHS

By David McIvor on March 12, 2014 in HSR Training
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Pre-employment medical assessment of job applicants has always been a controversial subject, both from a scientific perspective and because of the risk of unfair discrimination.  So is ‘discriminating’ against employing someone on the grounds of pre-existing disability legal (and/or ethical)?

Well – yes and no!

In a Queensland case a number of years ago (Cambey vs Qld Rail, and others), the complainant claimed that he was discriminated against on the grounds of a pre-existing physical condition. He underwent a medical examination as part of the recruitment process and was found to be medically unfit for the duties he was applying for.  The doctors had documented the functional demands of the tasks that were used by the in making their fitness for duties determination.

The matter went to mediation with the HREOC and then to the Qld Anti Discrimination Tribunal, which found that Qld Rail had positively discriminated against the complainant but that the OH&S legislation takes precedence over Anti-Discrimination legislation.  All costs were awarded against the complainant!!!

In a nutshell, the tests are lawful provided they are reasonably related to the requirements of a particular position.  That is why a full job and task analysis is important, and that reasonable adjustment measures be made where possible.

In the USA, the Supreme Court has ruled that employers may refuse to hire a disabled worker when the company determines the job would threaten the worker’s life or health.  The court supported a regulation of the Equal Employment Opportunity Commission (EEOC) that authorises employers to refuse to hire an individual who is disabled because his or her performance on the job would endanger his or her own health.

(The case involved a refinery worker with hepatitis C who was refused a job because the employer said it believed that airborne toxins in the plant would make his liver condition worse and could kill him.)

So are pre-employment physicals are illegal and unethical? No.

Can pre-employment physicals can be used illegally and unethically?  Yes.

The use of pre-employment medicals at recruitment stage involves two particular obligations:

* to ensure that any decision to refuse to offer an employee a position is not based on unlawful discrimination because of impairment

* to ensure that it does not ask for information which might be used to unlawfully discriminate unless there is a proper non-discriminatory reason for asking for the information.

If pre-employment assessments are being used as a predictor of future injury, in the absence of supporting evidence, then they are likely to be illegal (from an anti-discrimination basis).  Even if a positive result in a particular test means that the worker is 90% likely to have a particular injury, the worker may fall into the 10% that do not and therefore eliminating them from a job for this reason, may constitute discrimination.

If we are using them as an indicator of performance, then we must compare the worker’s abilities to the demands of the job.  To do this, first we must have done a thorough job analysis and identified the risk factors of the job.  The tests must be designed to measure the worker’s abilities against these demands.  The more ‘functional’ a pre-employment assessment is, the more ‘useful’ the information will be.  Pre-employment assessments that only look at medical conditions and standardised assessments are not indicators of performance but more likely to be used as predictors of injury.

Submitting all candidates for a job to these pre-employment screenings is not unethical or illegal if we are not asking them to perform any tasks that they are not ordinarily required to do and the sole decision for employment is not dependent upon these results.  For example, let’s look at a couple of scenarios.

Scenario One:  A job requires someone to lift 18kg.  Rob lifts 18kg safely.  Chris lifts 18kg easily and could very obviously lift in excess of that but we only test to 18kg because that is the requirement.  Chris does not score any higher than Candidate A – it is not a competition, it is a requirement.  Ang is unable to safely lift 18kg.  Based on their ‘duty of care’ the employer decides that Ang is an ‘unacceptable risk’ and they are invited to ‘train’ and reapply at a later date OR they offer them an alternative job OR they redesign the task (which should have been done in the first place).

Scenario Two:  A job requires someone to have a nursing degree.  Alex passed their degree last year.  Blaine passed their degree with high distinctions and has several years experience.  Blaine does not score any higher than Alex – it is not a competition (or is it?), it is a requirement.  Clay has not yet completed their degree.  Based on the minimal education requirement, the employer decides that Clay is not suitable and they are invited to ‘train’ and reapply at a later date.

So, what can we conclude?

  1. Physical aptitude tests should not be used as a basis for selecting new employees but they may be useful for placement decisions and the allocation of tasks to existing personnel.
  2. Such a test must relate specifically to the genuine and reasonable requirements of the job. The specific physical capacities for the job must be accurately identified. Reasonable ways of accommodating people with impairments have been considered and necessary facilities or services provided if reasonable.
  3. Assessments of health status and fitness may be appropriate for occupations where there is a legislative requirement for health screening especially where exposure baselines may be needed.
  4. The tests should not contravene legislation that applies to the occupation and in particular they should not be more hazardous than the tasks in the relevant occupation itself.  Wherever practicable, tasks should be redesigned so they comply with the appropriate codes and standards; aptitude and training tests should reflect the least hazardous technique for performing the task.
  5. Pre-employment screening should not be used as a substitute for other forms of hazard reduction for the relevant occupation; the risk control hierarchy should be followed.
  6. The interpretation of the results of physical aptitude tests should not be based on physical strength alone if other personal qualities will have a bearing on ability to perform the tasks.

General considerations regarding pre-employment testing include:

  1. The tests must be matched to the risks of the job
  2. The cut off level for each test should be consistent with an acceptable level of risk
  3. The testing procedure should fit in with other aspects of a health and safety program, for example – it should make allowance for the benefits to be gained from training and experience (that is, allowing for the fact that the applicants will get better at the physical aspects of their work once they get some experience at it)
  4. The testing procedure should:
  • be safe to administer
  • be economical
  • modified as the risks in the job are modified by other strategies, such as improvements in equipment.

Two strategies are suggested which, if correctly followed, will not only provide an employer with information which is in fact required to make a lawful assessment of a prospective employee’s capacity, but will also reduce the risk of a finding that a rejection of the candidate was for an unlawfully discriminatory reason.

1          At recruitment stage (particularly for positions involving strenuous manual labour or other physical hazard), employees should be provided with a detailed description of the physical requirements of the position. If possible, this should be broken down on a task-by-task basis. Heavy lifting, twisting, repetitive actions and any other activity likely to lead to injury in a vulnerable person should be specifically mentioned. When this has been done, the employee should be asked to answer the following question:

“Do you have any medical condition or restriction, physical or otherwise, which might affect your capacity to carry out any of the requirements of the position? Please give details.”

Because the question is limited to information which is clearly relevant to the particular position, it is a legitimate question.

2          It is also legitimate for an employer to require candidates to attend a medical examination to assess capacity. In this case, the medical adviser should be extensively briefed on the requirements of the position, and asked to report to the employer only whether or not the employee is, in the medical practitioner’s opinion, capable of safely and effectively carrying out all of the requirements of the position. Literally the only information which the employer should ask the medical practitioner to provide is an answer to the above question. An employer may safely rely on advice from a qualified medical practitioner to the effect that a candidate is not capable of carrying out the requirements of the position. It is almost always not safe for an employer to make judgments of this type.

So – the overall conclusion is – discrimination on the basis of impairment (or disability) is not necessarily unlawful.

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David McIvorView all posts by David McIvor