Physical Ability Testing: A Guide to Safe Job Placement, Accommodation, and Legal Compliance

A guide to implementing legally compliant physical ability testing (PAT) programs that prevent injuries, optimize performance, and ensure reasonable accommodations In Physical Ability Testing: A Guide to Safe Job Placement, Accommodation, and Legal Compliance, a team of distinguished medical professionals delivers an expert discussion of the fundamentals of creating a PAT program. Explaining the perspectives of the employer, the authors detail the systematic steps in developing and administering legally valid, job-specific PATs and providing proper interactive accommodation reviews for new hires and incumbent employees. The book covers testing policies and procedures that address methods to avoid discrimination and minimize disparate impact on protected classes such as individuals with disabilities, older adults, women (including those who are pregnant), and individuals affected by medical or behavioral health conditions such as substance use disorders or recent surgeries. It also provides critical information on defending test failure determinations based on the “direct threat” and “undue hardship” defenses. Readers will find: A thorough introduction to the validation process best suited for a defensible PAT program Comprehensive explorations of PAT programs in a variety of industries Practical discussions of administering PATs, legal cases covering them, and published scientific literature related to work physiology Complete treatments of the validation processes used in ensuring PAT programs remain legally defensible This book is perfect for human resource professionals, occupational physicians and nurses, physical therapists, occupational therapists, chiropractors, safety professionals, industrial hygienists, ergonomists, human factors specialists, and risk managers.

Table of Contents:
Chapter 1: Introduction to Physical Abilities Testing 1.1 The Physical Abilities Test 1.2 Impact of PATs on Safety 1.3 Qualifications to Perform a Physical Ability Test 1.4 Essential Job Functions - The Foundation of the PAT Program 1.5 Types of Physical Ability Tests 1.6 Contents of a Post-Offer Physical Ability Test 1.7 The Predictive Value of a PAT -- Relation to Direct Threat Defense 1.8 Benefits of Physical Abilities Testing 1.9 PAT vs FCE Chapter 2: Assessing Physical Ability to Work 2.1 Assessing the Gap between Physical Abilities & Work Demands 2.2 Employment Medical Examinations 2.3 Assessing Risk, Capacity, and Tolerance to Work 2.4 Assessing Impact of Impairments and Disability on Work Ability 2.5 Lift Strength Capacity Tests 2.6 Cardiopulmonary Tests to Determine Work Fitness Chapter 3: Avoiding Employment Discrimination 3.1 Employment Discrimination -- Responsibilities of Employer and Evaluator 3.2 Discrimination Based on Disparate Impact of a PAT 3.3 PAT Compliance with Anti-discrimination Laws 3.4 Disparate Impact and the Four-Fifths Rule 3.5 Discrimination Related to Disability -- ADA & ADAAA 3.6 Discrimination Related to Drugs 3.7 Discrimination Related to Obesity 3.8 Discrimination Related to Pregnancy 3.9 Discrimination Related to Age and Gender 3.10 Discrimination Related to Hearing Disabilities 3.11 Discrimination Related to Visual Disabilities 3.12 Discrimination Related to Artificial Intelligence Chapter 4. Disability and Interactive Accommodation 4.1 Introduction 4.2 Accommodation Timing and Inquiries 4.3 Role of the PAT in Determining Accommodations 4.4 Initiating an Accommodation Review 4.5 Verifying a Covered Disability Under the ADA 4.6 When an Accommodation Request is Reasonable 4.7 When an Accommodation Request is Not Reasonable 4.8 Disclosing Information Regarding Accommodations 4.9 Choosing Accommodations - Employer vs Employee 4.10 Response Time to Provide Reasonable Accommodation 4.11 Reasonable Accommodations Related to the Hiring Process 4.12 Types of Accommodations Related to Performing Essential Functions of a Job 4.13 Accommodating Employees Covered by ADA and FMLA 4.14 Undue Hardship 4.15 Interactive Accommodation Review: Step-by-Step Guide Chapter 5. Physical Demands Analysis 5.1 Introduction 5.2 Role of Ergonomics in Determining Essential Physical Demands 5.3 Project Planning 5.4 The PDA Process 5.5 Assessing Postural Demands 5.6 Assessing Repetitive Motions 5.7 Assessing Lift Demands 5.8 Assessing Multi-Person Lifts 5.9 Assessing Carry Demands 5.10 Assessing Push and Pull Demands 5.11 Assessing Climbing Demands 5.12 Assessing Energy Expenditure Demands 5.13 Assessing Balance and Coordination Demands 5.14 Assessment of Vibration Exposure Demands 5.15 Assessing Vision and Hearing Demands 5.16 Assessing Environmental Demands 5.17 Summary of PDA Steps 5.18 The PDA Questionnaire 5.19 Memorializing and Maintaining Current PDA Data Chapter 6: Validating Physical Ability Tests 6.01 Introduction 6.02 Uniform Guidelines on Employee Selection Procedures and Test Validation 6.03 Fairness of Testing and Adverse Impact 6.04 Maintaining Reliability of a PAT 6.05 Effect on a PAT from Confounding Variables in the Work Environment 6.06 The Three Basic Methods for Validating Physical Ability Tests 6.07 Combining Content and Criterion-Related Validity 6.08 Cost and Time Involved with Content Validation vs Criterion-related Validation 6.09 Summary of Key Differences in Validation Approaches 6.10 Legal Challenges to Validated Physical Abilities Tests 6.11 Steps Employers Can Take to Defend Against Legal Challenges 6.12 Unacceptable Evidence for Validity 6.13 Maintaining Ongoing Validity of a PAT Program 6.14 References that Support the Validation Process Chapter 7. Policies and Procedures for Test Evaluators 7.1 Introduction 7.2 The Role and Obligations of the Evaluator 7.3 Liability Considerations for Evaluators Administering PATs 7.4 Creation of PAT Protocols 7.5 Standardization of the Test Environment 7.6 Space and Equipment Requirements 7.7 Timing of Medical Inquiries 7.8 Qualifications for Administering a PAT 7.9 Verification of Identify of Test Recipient and PAT Protocol 7.10 Medical Consent and HIPAA Release Forms 7.11 Medical Inquiries and Health Questionnaires 7.12 Monitoring Heart Rate and Blood Pressure 7.13 Conducting the Physical Examination 7.14 Accommodating Testing for Pregnant Individuals 7.15 Assessing Symptomatic Test Recipients 7.16 Assessing Test Recipients Taking Pain Medications 7.17 Performing Physical Ability (Functional) Tests 7.18 Testing with Physician-Imposed Functional Restrictions 7.19 Scoring Test Outcomes - Pass/Fail Determinations 7.20 Discharge and Release 7-21 Reporting Evaluation Results 7.22 PAT Outcome Notification Chapter 8: PAT Policies and Procedures for Employers 8.1 Creation of a Policies and Procedures (P&P) for Physical Abilities Testing 8.2 Identification of the P&P Document 8.3 Key Operational Definitions 8.4 Purpose and Objectives 8.5 Scope 8.6 Eligibility and Applicability 8.7 Accommodating Test Procedures 8.8 Test Design and Content 8.9 Medical Hold 8.10 Pass/Fail Determination 8.11 Validation 8.12 Assignment of PAT Program Responsibilities 8.13 Qualifications of PAT Administrators (Test Evaluators) 8.14 Medical Inquiries 8.15 Test Notifications and Instructions 8.16 Conditional Job Offer Acknowledgement 8.17 Process for Acquiring Test Results 8.18 Drug Testing 8.19 Pain Medications 8-20 Compliance with Medication-Assisted Treatment (MAT) for OUD 8.21 Identification of Disability and Accommodations 8.22 Returning from Extended Medical Leave and FMLA 8.23 PATs Following FMLA Leave 8.24 Medical Hold and Release Requirements 8.25 Pregnancy 8.26 Epilepsy / Seizure Disorders 8.27 Retesting 8.28 Addressing Conflicting Medical Opinions Regarding Work Ability 8.29 Addressing Employee-Doctor Conflict with Imposed Work Restrictions 8.30 Accommodations for Language Impaired, Mute, Deaf and Blind Job Applicants 8.31 Interactive Accommodation Review Following Test Failure 8.32 Denial of Employment / Withdrawal of a Conditional Job Offer 8.33 Artificial Intelligence (AI) in Hiring 8.34 Data Management and Confidentiality 8.35 Monitoring Program Effectiveness 8.36 Final Approval and Signatures Chapter 9 -- Legal History of Occupational Health Protection 9.1 Introduction 9.2 Federal Employers Liability Act of 1908 (FELA) 9.3 National Labor Relations Act of 1935 (NLRA) (Wagner Act) 9.4 Federal Tort Claims Act (FTCA) 9.5 Section 502 of the Labor Management Relations Act of 1947 (Taft-Hartley Act) 9.6 Coal Mine Safety Act of 1952 9.7 Longshoremen's and Harbor Workers Compensation Act of 1958 9.8 National Foundation of the Arts and Humanities Act of 1965 9.9 Metal and Nonmetallic Mine Safety Act of 1966 9.10 Construction Safety Act of 1969 9.11 Occupational Safety and Health Act of 1970 9.12 General Duty Clause of the OSH Act of 1970 9.13 OSHA Guidelines on Medical Screening and Surveillance 9.14 OSHA HAZWOPER Standard at Hazardous Waste Sites of 1986 9.15 OSHA Screening and Monitoring of Hospital Workers 9.16 Title VII of the Civil Rights Act of 1964 9.17 Age Discrimination in Employment Act of 1967 (ADEA) 9.18 Section 504 of the Rehabilitation Act of 1973 9.19 Americans with Disabilities Act of 1990 (ADA), Amended Act (2008) and EEOC Guidance 9.20 ADA - Medical Inquiries and Examinations 9.21 ADA - Employee Health Programs 9.22 ADA - Disclosure of Medical Information 9.23 ADA - Non-Medical Exams and ADA 9.24 ADA - Medical Information Related to the Job and Consistent with Business Necessity 9.25 ADA - Medical Response to Request for Accommodation 9.26 ADA -- Standard for Triggering a "For Cause" PAT for Employees 9.27 ADA - Employee's Failure to Respond to Valid Medical Inquiry 9.28 ADA and Family and Medical Leave Act of 1993 (FMLA) 9.29 ADA and Collective Bargaining Agreement 9.30 DOT Exams and FMLA 9.31 Pregnancy Discrimination Act 9.32 Pregnant Worker Fairness Act and PATs 9.33 The Health Insurance Portability and Accountability Act of 1996 (HIPAA) 9.34 Genetic Information Nondiscrimination Act of 2008 (GINA) Chapter 10 -- Appendix Appendix 1 Appendix 2 Appendix 3 Appendix 4 Appendix 5 Appendix 6

About the Author :
Richard W. Bunch, PT, PhD, CBES is a retired physical therapist and ergonomic specialist with a PhD in Human Neuroanatomy. He brings over 45 years of experience in physical ability testing, functional capacity evaluation, and ergonomics. He has held faculty appointments at LSU Medical Center and Tulane University School of Public Health, founded WorkSaver Employee Testing Systems, and developed the Certified Behavioral-Based Ergonomics Specialist (CBES) program. Trevor D. Bardarson, PT, OCS, CBES is a Board Certified Orthopedic Physical Therapy Specialist, Strength and Conditioning Specialist, Spine Specialist, Certified Physical Ability/Functional Capacity Evaluator, and an Ergonomic Specialist with over 30 years of experience. He is the Owner/President of WorkSaver Employee Testing Systems LLC. Douglas A. Swift, MD, MSPH, FACOEM is a Board-Certified Occupational Medicine Physician. He has over 40 years’ experience in clinical occupational medicine and serves as an Associate Clinical Professor at Tulane University School of Public Health. Horace A. Thompson III, JD is a labor attorney with over 40 years of courtroom experience as a lawyer and a judge.