There’s a major distinction among people who view their disabilities as a challenge to overcome and those who can’t wait to turn their challenges into a disability. Company after company has proven that hiring the truly disabled is a wise business decision that can also inspire non-disabled workers. Unfortunately, ADA restrictions lead many employers to perceive disabled applicants as either not up to the job, potentially burdensome, or a future legal liability. All three of these perceptions are often untrue.
Most accommodations for disabled employees cost less than $500, and the return on this investment tends to be very favorable. Experience shows disabled employees have a greater sense of loyalty and lower turnover than their non-disabled counterparts, and are far less likely to get caught up in petty workplace drama.
You can also find federal and state tax incentives for hiring, including disabled access credit, barrier removal deductions, and work opportunity tax credits. For more information visit the Web sites of the IRS (www.irs.gov), US Department of Labor (www.dol.gov), the Job Accommodation Network (www.jan.wvu.edu), or check with your state vocational center.
We recommend that employers conduct pre-hire and return to work “fit for duty” exams. To balance the employers’ need to know with the employee’s right to privacy and disability protection, the EEOC issues guidance in Enforcement Guidance on Disability-Related Inquiries and Medical Examinations. In the case of Indergard v. Georgia-Pacific Corp. the 9th circuit helped clarify the distinction with physical agility exams which are not subject to the guidelines.
Determining whether a test is a medical examination depends on these factors:
• Whether the test is administered by a health care professional
• Whether it is interpreted by a health care professional
• Whether it is designed to reveal an impairment of physical or mental health
• Whether it is invasive
• Whether it measures an employee’s performance of a task or their physiological responses to performing the task
• Whether it is normally given in a medical setting
• Whether medical equipment is used
The EEOC Enforcement Guidance states that, although in some cases a combination of factors might be relevant in determining whether a test is a medical examination, in “other cases, one factor may be enough to determine that a test or procedure is medical.” It then provides a list of tests that are considered medical examinations, including “blood pressure screening and cholesterol testing” and “range-of-motion tests that measure muscle strength and motor function.”
The EEOC Enforcement Guidance states that certain employer-required tests are generally not medical examinations – including physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting – as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).
In the Indergard case, the court ruled that the employer did have to comply with Medical Examination guidelines. Click here to read the case.
There’s no way around it — the American workforce is aging. In fact, this is such a major issue that the AARP publishes an annual list of those companies that do the best job with supporting senior workers. Such companies have these common characteristics:
- Help older workers adjust to the fact they might be managed by employees 20 years or more their junior.
- Tap into their wisdom and share it.
- Realize that senior workers like flexibility as much as working parents and others do.
- Place these workers in a mentoring position and give them a junior employee to mentor them on subjects such as technology and marketing trends.
- Invest in ergonomics that can make their jobs less tiring.
- Reconsider mandatory retirement programs.
- Think long term — their older employees do!
Older Americans want to work longer and many of them have to. Employers need dedicated and loyal workers willing to stick around for a while. If properly managed, this can be a win/win solution for all involved.
Caveat: A recent Jury Verdict Research Report reported three age discrimination verdicts in the amounts of $120,000, $120,000, and $500,000. That does not include the time, cost, and emotional investment associated with putting up the defense. When it comes to older workers, be careful not to step on the Age Discrimination and Employment Act landmine; realize that at times it might be cheaper to keep them, even if they’re not performing up to standard.
Millions of Americans are in a credit mess. While half of these people have credit problems due to health problems, divorce, or loss of long-term employment, others simply spend more than they make. Employers argue that using employment credit checks can establish not only workers’ identity, but their fiscal responsibility, honesty and integrity. Insurance companies use credit reports in underwriting Automobile insurance based on the assumption that people with poor credit history tend to get into more accidents, file more false claims, and malinger or create injuries.
Should your company conduct credit background checks? The answer is a resounding “yes” if the employee is in a security position or handling your money or that of a client. Banks and financial service companies run employment credit background checks routinely. As for everyone else, legal considerations will affect your decision. The Fair Credit Reporting Act requires disclosure and consent before a company can use a third-party reporting service. Then there’s the question of privacy. Employees and their lawyers are sure to argue that one’s credit history has such a remote relationship to a worker’s ability to perform that it’s an “invasion” of their privacy. You can counter this argument by severely restricting who gets to see the report information and sharing the information with the employee so that they can guard against inaccuracies caused by identity theft and inaccurate reporting.
Lastly, there is the concern that credit checks may generate a “disparate impact” on protected employee group. Ultimately, unless the worker will be in a financial/security type position, bear in mind that a person’s credit history is only one part of the decision-making that goes into the hiring process.
We encourage you to use such reporting agencies as www.globalhrresearch.com that have the staff expertise to help you properly access and manage sensitive, credit, and other background information.