Network Insurance Services, LLC: Knowledge Center

Q: Should a Cost Reduction Technologies (CRT) new-hire strength test be conducted pre-offer or a post-offer?

A:

CRT's pre-employment physical capability evaluation is not a medical test in accordance with Equal Employment Opportunity Commission (EEOC) guidelines. It can be administered pre-offer. Doing so will limit the legal risk exposure that may accompany rescinding a job offer. When the test is conducted pre-offer, if the applicant fails, employers do not need to take further action. However, if performed post-offer, upon rescinding the job offer, the applicant will likely ask why and possibly demand the specifics of their test results, all of which can open the door for legal trouble.

Q: Can an applicant get injured while performing the strength test?

A:

NO. The isokinetic machine used to conduct the test does not allow a person to physically exert any more force than the body is capable of producing. The machine measures force, rather than requiring a person to lift weight. Traditional work conditioning testing, which requires applicants to mimic essential job functions, such as climbing ladders or lifting sand bags, does not offer the same sense of security for employers. Applicants can easily aggravate a pre-existing injury or become injured while performing these tests. Typically, the applicant knows the physical requirements of the job and may push his or her body beyond its capabilities in order to get the job.

Q: Do I have to tell an applicant when he or she fails the test, which is the basis for not hiring them?

A:

Many companies do not provide applicants with exact reasons why they were not hired. For example, if good communication skills were a requirement of a job and an applicant had poor verbal skills, most employers would not tell the applicant the exact reason. If an employer gives a reason, it might simply be, "We went with another applicant who we believe to be more qualified." The same applies here. You are under no obligation to share the results of the test with applicants, even if they specifically ask. It is certainly okay for you to tell an applicant the results, but it is recommended that you only inform them of whether they passed or failed, without giving the test score, in order to avoid any comparisons among applicants or employees.

Q: If an employee fails a pre-employment strength and agility test, do I have to make a reasonable accommodation under the Americans with Disabilities Act (ADA)?

A:

If an employee fails the test, the employer owes no duty of any kind. This interpretation of the ADA was upheld by the Supreme Court in Chevron U.S.A., Inc. v. Echazabal. Additional appellate rulings in EEOC v. Woodbridge Corp., affirmed that the employer did not violate the ADA by denying employment based on results of pre-employment nerve conduction tests for applicants' susceptibility to carpal tunnel syndrome.

Q: Do I have to allow applicants to test again at a later date if they can prove that they went through body conditioning?

A:

An employer is under no obligation to test an applicant again. However, many companies using this testing will allow a retest if the applicant is within a certain range of the minimum score. Some employers will pay for the retest, while others bill the applicant.

Q: Can I still place an applicant in the job, even if he or she fails the test?

A:

Keep in mind that doing so would defeat the purpose of the test. You could very likely be hiring your next Workers' Compensation claim by hiring an individual with a preexisting condition. With any testing of new hires, consistency in the application of the results is absolutely necessary to remain compliant. Employers that hire applicants who do not meet the minimum or acceptable standards for a particular job could face discrimination issues.

Q: Do I have to test all current employees once I implement this program?

A:

NO. Current employees are not required to be tested. However, companies will sometimes perform incumbent testing in order to establish a baseline score against future injuries. Cost Reduction Technologies does not share individual results with the employer. Rather, a report is sent classifying the workplace as a whole (i.e. 30% of bricklayers have shoulder weakness). The present employees' individual results are only used in the case of a future employee injury. At that point, the results are used as a baseline to avoid an employer facing discrimination issues. While an employer could use the individual test results to terminate or move employees into different positions, the existing case law is weak on both sides, so companies tend to refrain from this practice.

Q: If the union does not allow pre-employment screening, is a company still able to put applicants through the strength test?

A:

First, confirm the laws found in your union contract. A union may tell you that this testing is not allowed, but there may be no contract verbiage prohibiting pre-employment screening. If specific wording is in the contract, you must abide by the rules and therefore cannot put your applicants through the strength test. However, when the contract is up for renegotiation, if you are able to add the allowance for pre-employment screening, it is recommended to keep the verbiage general. The contract should simply state that pre-employment screening is allowed, rather than refer to it as "CRT pre-employment strength testing".

Q: Am I guaranteed to NOT get sued?

A:

In today's society, no company is guaranteed to be lawsuit-free, even if a company does everything correctly. It is important to consider that entities are less likely to face a discrimination claim if there are clear grounds for denying employment. By having specific job requirements outlined, using credible job task analyses of each job classification and a Cost Reduction Technologies test result showing that the prospective employee is incapable of performance, then specific proof supports your decision not to hire. Without physical agility testing, there is no concrete evidence that your decision not to hire was based on a lack of ability instead of based on age, sex, or a perceived disability. It is much safer to have an objective, valid, and consistent strength and agility test to establish conclusively that the candidate is not capable of performing the essential, physical job demands.

Q: If my company uses your test and I have legal or medical questions, who do I turn to?

A:

CRT is the only company of its kind that is managed by medical professionals. As a resource, they have a committee of medical, legal, and scientific professionals who are available to answer specific questions.