The Importance of Accurate Job Descriptions in Functional Employment Testing Programs – Laying The Legal Foundation For Hiring And Employment Practices That Include Functional Abilities Of The Workforce
By Larry Feeler, PT, CEAS, CEO/Founder WorkSTEPS
Accurate job descriptions play a critical role in helping employers make content valid employment decisions regarding issues involving placement and work injury management issues. They will also help the 880,000 employers in the United States meet the requirements of employment law regarding the amended American’s with Disabilities Act (ADAAA) and the Equal Employment Opportunity Commission (EEOC) enforcement laws. Furthermore, such information is the ONLY way to truly answer a reasonable accommodation request by an employee.. Under the ADA, in order to be legally compliant, all employment decisions regarding hiring, health maintenance, rehabilitation, and disability must be based on actual job requirements. In order to implement effective and legally compliant prevention, injury management, transitional duty, and return-to-work programming, employers should consider documenting functional job requirements and incorporating them into written job descriptions.
In 1986, I had the fortune of recognizing a need for my father’s construction company to test new-hires in order to match their physical abilities to their specific job requirements to ensure better safety. I developed the first comprehensive medical/functional physical for workers that incorporated content valid essential function testing. Since that time, WorkSTEPS has evaluated thousands of jobs and performed over 1.3 million tests and houses the largest industrial human database in the world. The only way this system has survived without any discrimination lawsuits is the validity established by placing workers based upon empirical evidence collected in the job analysis. Another caveat to such an evaluation is the recognition of ergonomic solutions that effectively lower the risk of injury or cumulative trauma to the workers. It is also a benefit to know and measure all the job positions for an employer so that a light or modified transitional work program can be implemented to return workers to gainful employment as soon as possible. Without such information, accurate and safe transitional return to full duty is impossible.
Among other important job analysis requirements, ADA statutory law, Section 42 U.S.C., 12111 (8), states that, “The ADA requires that consideration be given to the employer’s judgement as to what functions of a job are essential.” The ADA provides that employers who have written job descriptions have a greater chance of the EEOC agreeing with their determination as to what will constitute the essential functions of the job. In short, accurate job descriptions are fundamental to legal compliance. Even though the ADA does not require job analysis or job descriptions, ADA case law has established that it is hard for any employer to justify its employment decisions without first documenting just what will constitute the job related and essential requirements of a particular job. Written job descriptions offer employers much broader protection in both circumventing and defending ADA and EEOC litigation. They are equally valuable to their employees. Job descriptions detail employer expectations and establish firm boundaries for employees. Trends indicate that employees, who are provided with accurate and definitive job descriptions from the start, make better choices about employment opportunities they are considering. This characteristic combined with the confidence that they have been able to successfully demonstrate their ability to perform such functions results in a deeper commitment to safe job performance as well as decreased turnover. .
Louis Lippman, a Houston, Texas based attorney states, “I often have human resource personnel argue that job descriptions aren’t required under the ADA and that is absolutely true. But consider this – it is not against the law to steer a car with your feet, but I certainly wouldn’t advise you to do so! You are placing yourself at much higher risk for a lawsuit if you don’t have written policies and procedures firmly in place.” This is evidenced in the case of Hearing Aid Institute v. Rasmussen (258 Mont. 367, 852 P.2ND 628). Hearing Aid management was making decisions regarding hiring, firing, and return to work issues without having any job descriptions or criteria upon which to make those decisions as part of their written policies and procedures. Having no minimum hiring standard or any screening procedures in place “sunk” the employer. The court ruled in favor of the employee.” It would have been to the advantage of the employer to have job descriptions in place before hiring as indicated in the EEOC Technical Assistance Manual, Section II. 3. b., “If the employer intends to use a job description as evidence of essential functions, the job description must be prepared before advertising or interviewing for a job.”
“The Ten Commandments Of ADA Compliance”, should include the commandment, THOU SHALT HAVE ACCURATE JOB DESCRIPTIONS. An elaboration of the commandment includes the following details::
- DO NOT USE CANNED JOB DESCRIPTIONS. There is potential liability when using generic or old job descriptions.
- WEIGH, MEASURE, AND DOCUMENT INFORMATION OBTAINED THROUGH A THOROUGH ON-SITE JOB ANALYSIS. Job Descriptions Should Be Based On Accurate and Inclusive Information Obtained Through A Thorough On-Site Ergonomic Job Analysis and the feedback of existing workers and their supervisors.
- WRITE JOB DESCRIPTIONS IN CLEAR, SIMPLE LANGUAGE THAT IS UNDERSTOOD BY BOTH EMPLOYER AND EMPLOYEE. A Job Description Should Include Job Classification, Its Basic Purpose, A Description Of Required Job Functions, Identification Of The Essential And Marginal Job Functions, Physical Demands, And The Skills Required To Perform The Job Functions.
- THOU SHALT PERFORM AN ANNUAL REVIEW OF ALL JOB DESCRIPTIONS. Job descriptions should be reviewed periodically to ensure job tasks have not changed.
Job descriptions must be ergonomically sound in identifying physical demand requirements. They must also be interpreted as to the legality of job grouping, job rotation, and other legal issues. They must also be written with legal defensibility in mind. Job descriptions should be very precise and include detailed information on weights lifted, actual heights, dimensions of objects moved, and a specific number of job related repetitions. Many employers have job descriptions prepared by professionals such as ergonomists, safety engineers, and other industrial professionals that over-emphasize the technical and ergonomic components of the job but don’t break them down to human performance. Some descriptions may be very difficult to read and understand. If employers can’t understand them, it is very likely that a jury would have difficulty as well. Conversely, if job descriptions are prepared correctly, it is doubtful an employer will ever see a court of law.
In today’s world of ADA, EEOC, and OSHA compliance, as well as state law requirements such as FEHA in California, an accurate ergonomic analysis is essential to success. WorkSTEPS has recently incorporated the assistance of Biddle and Company, one of the largest EEO compliance companies in the United States to help develop job analysis software that will standardize the data collection process and interview information for a job and filter the information down to the essential function requirements. WorkSTEPS will then continue its current policy of testing incumbent workers, getting their feedback and performance data and then fine tuning the requirements accordingly.
There is no question that accurate job analysis, ergonomic intervention implementation and content valid essential function testing result in a safer and more productive workplace with legal defensibility…….and that is a GREAT foundation for future success!!