Pre-hire health screening can avoid comp claims, subject to legal pitfalls

CHICAGO — Employers that use pre-hire or post-offer physical abilities tests to mitigate the risk of injuries and to keep workers compensation costs from rising must keep in mind a web of legal risks involved in such health screenings.

Employers will want to plan and excite testing in a manner that is legally defensible in light of parameters set by state laws and federal regulations outlined by the Equal Employment Opportunity Commission, according to Deborah Lechner, Birmingham, Alabama-based president of ErgoScience Inc., who spoke Tuesday at the Risk & Insurance Management Society Inc.’s Riskworld annual conference.

Presenting a top list of pitfalls, Ms. Lechner said employers can open themselves up to lawsuits if they ask too many health questions up front, dig into genetic information or family history, fail to test all employees in a manner that is considered equal, use testing that is not associated with actual job tasks, or is considered too broad for gauging physical ability.

Upon post-hire screening, “if you then get all that medical information and then rescind the offer, you can be accused of making your decision based on the medical data,” she said.

If the employee is later injured, Ms. Lechner said that baseline information can be used to establish history before the injury, “but we never share it at the time of job offer.”

Consistency in testing and having an accurate job description to gauge what physical requirements are needed are also important factors, she said. Detailed job descriptions are “the foundation of your defensibility” in a lawsuit, she added.

“You want to make sure that all employees who are entering that same job category get the same test, and that your pass-fail criteria are the same for everyone,” she said.

Non-valid testing, however, is “the biggest reason I see companies getting sued,” she said, adding that “it’s very important to ask a vendor, a hospital, a clinic, who is doing the testing for you, if they have research that supports the reliability and the validity of the test that they’re using.”