By Cynthia N. Gallaher
Vice President of Marketing
Worksteps, Inc.

Regulations being imposed on employers by the Americans’ With Disabilities Act (“ADA”), Equal Employment Opportunity Commission (“EEOC”), and the newly enacted Occupational Health and Safety Administration’s (“OSHA”) Ergonomic Standard are making employers more accountable for worker safety and forcing them to be much more exact about job requirements and the policies and procedures that govern job processes. 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. Accurate job descriptions play a critical role in helping employers make fair and objective decisions regarding issues involving their employees.

Louis Lippman, an attorney with the Houston based law firm of Lippman, Michelson & Associates, agrees that accurate job descriptions are fundamental to legal compliance. “When developed in compliance with regulatory standards set forth by the ADA and the EEOC, they offer the employer a much broader protection in both circumventing and defending ADA and EEOC litigation. They are equally valuable to their employees. They detail employer expectations and establish firm boundaries for employees. Employees have a clearer understanding of what a job entails from the start and are able to make better choices about the opportunities they’re considering. Accurate job descriptions result in a deeper commitment on the part of employees and less turnover for employers.”

“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 what constitutes the requirements of a particular job.” states Lippman. “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 drive with your feet but, I certainly wouldn’t advise you to do it! You are placing yourself at a 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 v. Rasmussen. Hearing Aid management was making decisions regarding hiring, firing, and return to work issues without having any job descriptions or criterion 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.”

Developing an Effective Job Description
What determines whether a job description is legally compliant under federal regulations? “In order to insure job descriptions are accurate and complete, a job description must set forth:

a. the job classification,
b. its basic purpose,
c. required job functions,
d. identification of the essential functions,
e. marginal job functions,
f. physical demands, and
g. the skills required to perform the job functions.

According to Lippman, “Job descriptions are like horseshoes and hand grenades, close doesn’t count”. In today’s world of ADA, EEOC, and Ergonomic Standards, these 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, “essential” versus “marginal” job functions, and other legal issues. They must be written with legal defensibility in mind.
Job description should be very precise. Lippman claims that many employers have job descriptions prepared by professionals such as ergonomist, safety engineers, and other industrial medicine professionals that over emphasis the technical and ergonomic components of the job. Additionally, they are often very difficult to read and understand. “If you can’t understand them, I can assure you that a jury would have difficulty as well. Conversely, if job descriptions are prepared correctly, it is doubtful that you will ever see a court of law.”

Safety First
With the advent of OSHA Voluntary Ergonomic Guideline, the burden of employer safety is being placed squarely on the shoulders of the employer. In an effort to identify job candidates who are physically suited to perform physically demanding jobs, employers are beginning to embrace hiring practices that help determine which candidates are statically safe to perform certain jobs. Measuring actual function of a potential or existing employee is becoming common practice as well. Employers are utilizing functional assessment procedures that assess an applicant’s ability to perform the physical demands of the jobs their being hired to perform. Legally, this can be accomplished through utilizing assessments that objectively determine physical capabilities. Performing an accurate job analysis, determining and documenting essential functions from the analysis, and documenting those essential functions into job descriptions is critical to the legally defensibility of this kind of prevention programming. Additionally, decisions in injury management, transitional duty, and return to work are being made more often on “functional data” versus “opinion” making information documented in job descriptions critically important to the processes used throughout the work injury and disability management service continuum.

Under the ADA, if a job applicant cannot demonstrate the ability to perform the job-related functions, an employer does not have to offer the job applicant the job that he or she seeks. The employer may also revoke a conditional job offer that has been previously made to a job applicant. Many employers are afraid to make such employment decisions for fear of legal liability. When the employer has performed job analysis, has determined essential functions, and has accurate job descriptions, this type of screening has virtually no risk under the ADA and federal anti-discrimination laws. “As a consultant, it has been my experience that employers who have not adhered to this process and make all employment decisions trying to be “fair minded” end up putting themselves at high risk for litigation. These employers are the most likely to have both ADA claims and financial losses. Inconsistency is the “kiss of death” under the ADA, and remember, no good deed ever goes undone.” In Stinson v West Suburban Hospital Medical Centers (II NDLR, N.D. III, 1998), an applicant’s conditional job offer in housekeeping was withdrawn when functional testing revealed she was unable to perform unassisted lifting up to 45 pounds. The ruling in the applicant’s discrimination case favored the employer because it was shown that the lifting requirement was a documented essential function of the job. Had the employer not had a written policy in place requiring essential functions testing for all new hires in housekeeping with this requirement, the applicant’s inability to perform the essential functions of the job safely would have gone undetected. Inevitably, this would have resulted in a workers’ compensation claim for the employer and a back injury for the employee.”

“Additionally, if this employer had hired the applicant despite the unsatisfactory test results because she needed the job, was a friend of the family, almost passed the test, etc., the employer would have placed himself at high risk for a discrimination suit by any housekeeping applicant that was held to the actual standards set forth in the job description. Although his intentions toward the applicant were admirable, HE WOULD HAVE LOST!”

Key Elements to Your Hiring Policy & Procedures
Some things that should be considered in writing policies and procedures that establish sound and compliant hiring practices, health maintenance, transitional duty, and return to work programming include:

a. performing a complete and thorough on-site ergonomic job analysis,
b. determining and documenting the essential functions from the job analysis, and
c. writing job descriptions that detail the requirements of job workers are expected to perform.

Employers can use this information to help make determinations about the occupational health of its workforce throughout the employment cycle, both pre and post injury.

“The Ten Commandments of ADA Compliance”, a seminar taught nationally by Michelson and Lippman includes four of the following points:
· THOU SHALT NOT USE CANNED JOB DESCRIPTIONS. There is potential liability when using generic or old job descriptions.
· THOU SHALT WEIGH, MEASURE, AND DOCUMENT INFORMATION OBTAINED THROUGH AND ON-SITE JOB ANALYSIS. Job Descriptions Should Be Based On Accurate and Inclusive Information Obtained Through A Thorough And On-Site Ergonomic Job Analysis
· THOU SHALT WRITE JOB DESCRIPTIONS IN CLEAR, SIMPLE LANGUAGE THAT IS UNDERSTOOD BY BOTH EMPLOYER AND EMPLOYEE. Job Descriptions 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 OR ALL JOB DESCRIPTIONS. Job descriptions should be reviewed periodically to ensure job tasks have not changed.

Bottom Line
Accurate and precise job descriptions lay the legal foundation for comprehensive work-injury management programs, particularly those components that include an employee’s functional capabilities. “It is in everyone’s best interest to use programming that prevents injury before it ever occurs. Well researched, written, and easily understood job descriptions help lay the ground rules for employees, and establish employer expectation from the start. Statistically, employees who have this kind of information at the onset of the employment cycle make decisions that result in longer employment commitments and employers make better decisions about the people their hiring.
For more information contact Cindy Gallaher, at 888-597-8377, ext. 207 for the legal article, or cindyg@worksteps.com.