Hi, good afternoon, everyone. Good afternoon. So welcome to staying on the safe side of physical abilities testing. My name is Kate Koop-Irwin, and I'm going to be one of your presenters today. I'm going to go over a few short housekeeping items before we get started. So if you haven't already, please download the AOHC 2023 app for your CME credit. You can evaluate the claim credit by navigating to this session in the meeting app. There's also a link in a neon green towards the bottom left with the session. Don't forget to silence your phones, please, and your devices. We'll be here for the next 90 minutes to talk to you about staying on the safe side of physical abilities testing. As I said, my name is Kate Koop-Irwin. I am a labor employment attorney. I represent employers for the past 15 years. I'm at the law firm of Frost, Brown, Todd. We have a national practice, but I am out of our Pittsburgh, Pennsylvania office. I represent employers in this field specifically when they are both designing their tests and working with healthcare professionals like you all to make sure that they're designing both a legally compliant and job-related test that will satisfy and stand up to legal challenges if they're ever challenged by either the EEOC or an applicant or an employee who's been subject to either a fitness or physical ability test or a medical exam in concert with their employment or application for employment. So I'm going to allow my co-presenters to introduce themselves, and we'll talk a little bit about our topic for the day. So look forward to speaking with you. TRACY TOFFENER. Thanks, Kate. My name is Tracy Toffener. I am an athletic trainer and strength conditioning specialist with Advanced Physical Therapy and Sports Medicine, and looking forward to sharing some case studies and applications of testing that we will talk about today. GINNY HAULING. Hello, and I'm Ginny Hauling, and I'm a physical therapist. I'm the CEO and president of DS-I Work Solutions, which is a company that teaches methodology in the design, development, and implementation of various types of functional tests. So today, we're very focused on the safe side of physical abilities testing, and when we say safe, we're talking about legal compliance. We're talking about designing testing to be safe for the individuals that are undertaking it, and we're talking about making sure that the employers are going to feel safe, that we are representing their jobs well, because, as Kate will explain here shortly, it's going to be on them. It's on the employer if the compliance is not there. So as we get started, we're going to go over a little bit about what's in it for the employer. In other words, why would they be interested in physical abilities testing? What's the benefit to them? We're going to hear in-depth from Kate on the legal compliance issues as they are today, and some of the most current casework that sets the groundwork for the environment in which testing is taking place today. I'm going to walk you through a bit of what a content-valid physical abilities test would look like, and talk with you a bit about why content validity is a good way to communicate and to perform testing. And then Tracy, who has extensive experience working with various employers and individuals, is going to take you through examples of how physical abilities testing has assisted employees and their employers in maintaining work ability, keeping employees working safely, making tough decisions as it relates to employment. So it's my privilege to get started with you. And so first, we're going to talk a little bit about the what's in it for the employers. I think that gets to you. Where did my section go? You didn't send the right version. That's okay. I can talk anyway. All right. So before, since I can't share with you, we're going to talk a little bit about outcomes. So why do employers care about physical abilities testing? Well, through the conference, it's been very interesting because we've heard a bit about the value, you know, as well as the return on investment of the various services that occupational health professionals offer. But of importance in physical abilities testing is today about maintaining a fit and able workforce. We know the stresses that we're facing economically, I believe, across the country. Employers are struggling to hire employees, and it's more vital than ever that they retain their employees. So the importance of the experience of employees from the minute that they begin the interview process through onboarding, through their experience as they work, through if it happens with them, through injury or illness, work-related or not, how do we assist the employees back to work if necessary, making sure that they're functioning safely, that they feel safe when they are in the work environment. So outcomes, hopefully my notes are going to guide me good enough since I do have them. Oh, perfect. Thank you. Yeah. That's interesting. Okay. So that isn't going to help me because I can't read that small. I can talk through most of them. Okay. So let's talk about a couple of employers and their examples. So Sanford Health is probably one of the providers that I've had experience working with over the years that implemented a physical abilities testing protocol in order to help them hire and retain their workforce. Long before we were facing the crisis of COVID, they were interested in retaining their skilled workers. They were actually doing quite well. They were considered to be in standard with national numbers in terms of injuries and illnesses that they experienced per 100 employees. So it wasn't that they had an emergent need to bring their numbers down, but they wanted to. They wanted to improve the experience for the employees and reduce their costs. So let's see, basically, they were able to reduce their rate of injury and illness cases over the first two years by 86%. And the way that happened is they were fundamentally able to reduce the days away from work, reduce the restricted work days, and reduce the medical costs, not by reducing the service that was being provided, but by increasing the efficiency and focusing on return to work as early as possible. So most of the costs that they benefited from had to do with reduced indemnity. And so that focus was important. Another employer, Eisenhower Medical Center, was able to reduce claims per 100 FTEs from 2.71 to 1.23 over the course of one year after implementing their physical abilities test. Now, this wasn't done alone. It was through the entire analysis process, raising some awareness on ergonomic opportunities, then implementing the test that led them to some of those numbers. As more of a manufacturing example, WeatherShield is a good company to look at. It's a small manufacturer, and how many of us work with smaller companies? Not all are large corporations. But none of their sites are more than about 100 employees. They have several in central Wisconsin. But they were able to reduce their workers' comp costs by 50% after implementing a physical abilities testing protocol. So not only that, and I will share a little bit later as we go through some of the process, and you'll be able to see that besides the numbers, what was so vital to their success was the improvement in morale. Because it's a positive approach when you use a more content-valid approach. It's well understood. It's not complicated. The team, the employees, the supervisors, the safety professionals, the human resource professionals are communicating on a level of understanding of the physical requirements of the work that enables them to be confident and to trust the communication that's passing between them. And vitally to this group, that same information that bases the physical abilities test, as you'll see here in a few minutes, can be communicated to you. So that you now can understand physically to a higher degree what it is that the individuals that are coming to you after an injury, perhaps even at the point of hire, what are the things that you need to be aware of that are going to enhance your ability to help their employees either onboard successfully or return to work after injury or illness. So you're going to see some examples of that here shortly as we get going. So sorry I couldn't bring those statistics up better for you. I'll try to work on that a little bit when I sit down after Kate takes you through all that legalese. That's so important. Because this is such a litigated area, as we know. It's a highly regulated area. And so making sure that we are designing and we are certifying or validating that these types of tests indeed reflect the job and are accurate is critically important. So let me bring Kate up to take us to school on the legal side. Thank you, Jenny, thank you. And I am short, so I'm going to step over here and maybe even walk around so that you guys don't get to see just this part of me while I'm working through the slides here. So why does the law care about employers implementing physical ability tests? So just by way of a show of hands, in this room, who is involved in their organization in either developing or monitoring a company's physical ability? That's medical exams, return to work, et cetera. So about half, if not 75%, some of you have some involvement, whether or not you're managing a program, whether or not you're working with human resources at your company, if you are designated OCMED to oversee that program. So it's really important that you understand why the law cares about this. You might not be the HR person, you might not be their outside counsel or inside counsel, but whenever you see and are familiar with these issues, you're going to be able to better understand what you must write to ring the bell, so to speak, to say, I think that this has a legal implication or something in our tests has changed and there is a legal repercussion and responsibility if something in a job duty has changed or something in, for example, the way that we test has changed, that we have a responsibility to adhere to these legal obligations. So why does the law care about employers implementing physical abilities and medical exams in the workplace? Well, the law cares because they presume that you may have a likelihood to screen out individuals that either have a disability or protected under the ADA, the Americans with Disabilities Act, or it could have an impact on individuals that are of certain races, certain colors or certain genders under Title VII or of certain ages that are protected under the federal law called the Age Discrimination and Employment Act. And so those federal laws, as well as many state laws that protect and govern the same types of legal protections, have certain restrictions about what an employer can and can't do when it comes to testing an employee or an applicant's ability to perform a job, right? So whether or not they're currently employed and they might have gone off on leave, what you can and cannot do when you test for their ability to return to work, what you can and cannot do and ask an applicant vis-a-vis their ability to perform a job or their history. There's this dichotomy and sometimes it is a push and pull. Sometimes it almost seems as if it's an opposite when we're talking about the medical realm of trying to understand if an employee can safely perform a job and what the law wants you to know and ask at certain points in time within that application process. And if you ask too much or you go too far, even if your intentions are not to discriminate, you could be facing a lawsuit as an employer if you're asking too much. If you're conducting a medical exam, although you think it's only a physical ability or agility test, even if you're unintentionally discriminating, and even in some cases we'll talk about even if that person who underwent that test ultimately gets the job and doesn't experience any harm, right? They go through the test, they successfully pass the test, but you shouldn't have given them that test in the first place. They too can potentially sue you and be a plaintiff. So that's what we're going to talk about for the next 30 minutes or so, to give you sort of a mini crash course in human resources legal aspects. So general questions regarding permissible testing. So what are the limitations to an employer's ability to test either an applicant or an employee? When we're talking about the phase or line of employment, right? When can I test and what can I test? Well the ADA imposes certain, as I said, limitations on those types of exams and tests that employers are permitted to conduct when it comes to applicants and employees. So let's talk about the first phase, the pre-offer phase. This is the most strict phase. You're not, you're only an applicant, you've not received an offer of employment yet. And the law gives the greatest protections here to these individuals, these applicants. You cannot make them undergo a physical agility or ability test and you cannot make them undergo an examination. Though what you at minimum can do is ask if that applicant is able to perform the job functions with or without reasonable accommodations, right? So you can ask the applicant, you can give them a job description, you can ask. But you can't ask about their medical history. You can't ask if they have a disability, right? Even if the intentions are to make sure that they could safely perform a job. You have to ask them if they can perform the job. You can in certain circumstances have them demonstrate to you, but that's really rare that an employer would go that far and have a demonstration. But you can ask if they can perform the essential functions of the job with or without accommodations. So that's that first phase. They walk into the room, they're undergoing an interview process, they've not received a job offer yet. Now the next phase, the post-offer pre-employment phase. So once an applicant has received a conditional offer of employment, the employer can, there's kind of two phases here, you can condition that job offer on the applicant's ability to pass a medical exam. So we know, right? You can all undergo hearing tests, sight, vision tests, etc. So long as all applicants in that job category, so you can't focus someone out of a group, they all have to undertake that same test for that same type of job, are required to take and pass the exam to become employed, and it's consistent with business necessity. The employer has presented an applicant again with the job offer, it may condition that job offer on the applicant's ability to pass that exam. So in addition to just kind of hearing and vision tests, etc., you can undergo a full exam, right? In most cases, it doesn't actually have to be job-related and consistent with business necessity, so long as it's not to focus on screening out disabled individuals. And if it does, or if it's likely to, then you're going to jump into the realm of, is it job-related and consistent with business necessity? And we're going to talk a lot about that for the next 25 to 30 minutes, and then when they get into their content validity approach, because that's really the legal standard for most of these issues is, is it job-related and consistent with business necessity? Now, testing during employment, right? So they've passed, the individuals passed their post-offer pre-employment screen, now you have an individual who's actually employed. Once the individual's employed, the employer is permitted to inquire whether the individual employee is able to perform job-related functions. And additionally, an employer may require an employee to undergo a medical exam, provided that the employer is able to demonstrate that the exam is job-related and consistent with business necessity, right? So I'm not talking about a physical ability or agility test yet. We'll talk about that later. And the restrictions and the requirements about physical ability or agility testing are very different than a medical exam. Very different than a medical exam. And in fact, medical exams are much more highly regulated. Why? Because you're learning so much more about that individual, their health, their background, etc. As opposed to under a physical ability or agility test, can the individual perform the job functions, right? So a medical exam is different, but we'll discuss what's job-related and consistent with business necessity. So know that you can require them to perform a medical exam or undergo a medical exam of an employee, so long as you can demonstrate that it's consistent with business necessity. Let me give you a few examples of what is at least job-related and consistent with business necessity. The Coffman v. Indianapolis Fire Department case. The fire department, the court, this is a Seventh Circuit appellate court decision. Mr. Coffman was a firefighter. He was made to undergo a psychological exam. Why? Because he had gotten into disagreements and fights with his co-workers. He had been acting out at work, and he had made some sort of threatening statements to his co-workers. And so the court, he was made to undergo a psychological examination, and they challenged that. His union challenged that as discriminatory. And the court found in favor of the fire department. It said, the fire department has an obligation to the public to ensure that its workforce is both mentally and physically capable of performing its demanding work. And it held that in a situation in which a firefighter is going into burning homes, potentially saving people, interacting with the public, safety issues, et cetera, that these instances of him interacting with employees, he didn't have to do anything yet, right? It was these sort of threats and statements that those types of statements gave the employer the right to direct him to undergo a psychological examination. Similar case, Brownfield v. City of Yakima. This is a police case. Year later, Ninth Circuit, so different part of the country, different appellate court, the employer had established a sufficient business necessity to require the officer to undergo a psychological evaluation prior to returning to duty as a policeman. So the policeman went off of work, is about to return to work, and they wanted to send him for a medical exam, specifically a psychological exam. Why? Because before he had gone on leave, he had made statements. He had made statements to coworkers about how he was feeling, undergoing a stop, like he was almost about to lose control of the situation. He had gotten into arguments with his coworkers as well, and then he said, I feel like it doesn't matter if this doesn't end well, something to that effect. And that statement, those statements and that conduct was sufficient to justify him to undergo a psychological evaluation before he returned to work. Now what's interesting about this case, though, is that the court noted that a business necessity may be established prior to an employee's work performance deteriorating, that the employer didn't have to wait until there was an incident with the police officer, until they did something bad, interacted with a coworker, injured somebody, et cetera, that those statements and those indications and those observances were sufficient to require the police officer to undergo that testing before returning to work. And they could, in fact, rely upon those older statements. He had been on leave for a certain period of time, and they could still rely upon those certain statements that he made while he was working. Another case, Watson v. City of Miami Beach, again, this is an older case, 1994. But the police requirement's a requirement that one of its officers undergo a fitness for duty exam, was found to be job-related and consistent with business necessity, where the department had information that reasonably supported the officer had been acting paranoid, hostile, and oppositional. I will tell you that these are three cases that dealt with fire or police. However, I have dealt with many cases that have been in the private sector, and the same standards apply. There's a bit of a deferring standard to these safety-sensitive, public-facing positions. However, whenever there were statements made, for example, that they were going to be threatening to other employees, they had acted out, et cetera, in a private office environment, and they sent the employee for psychological evaluation, that was still upheld. So they're very fact-specific cases, but generally, again, this type of behavior before an incident, you can send an individual employee for a psych exam, for a fitness for duty medical exam. So let's kind of pivot a little bit to post-office or pre-employment testing and focusing on the kind of physical aspects of the job as well. So this is the EOC v. Hirschbach Motor Lines. So we talked about this, once again, same legal standard, is if you're going to undergo a physical ability or mental medical exam, medical exam has to be consistent, job-related, and consistent with business necessity. If it's a periodic physical ability exam, if it would show disparate impact, right? Disparate impact meaning it impacts individuals who are of different genders, different races, different ethnicities, more than another, so males versus females, et cetera. You have to show, too, that it's job-related and consistent with business necessity. So in this Hirschbach case, which is a very recent case, you can see it's settled for $3.2 million. Hirschbach did something wrong to settle. The EEOC is bringing this lawsuit on behalf of a group of female applicants for employment who were denied employment. They alleged that this test that they were forced to undergo and then subsequently denied employment created a disparate discriminatory impact on them in violation of Title VII. So in this case, Hirschbach used a pre-employment back assessment to screen out and reject applicants it believed would be unable to work as over-the-road drivers, right? So these are truck drivers, long, tall types of drivers driving commercial types of trucks. They had them undergo a physical agility test, so it wasn't a medical exam, right? It was just a physical agility test that they needed to balance, stand on one leg, touch their toes while standing on one leg, and to crawl. The applicants were tested for this ability. Now the kicker was that they had already received DOT medical certification. They had already undergone the required, federally required, Department of Transportation medical certification. So ultimately, data showed that females were not passing this test of standing on one leg, touching their toes while standing and crawling at the same statistics or rates that male applicants were and were being then drummed out of the process or having their offers of employment rescinded at a rate, actually, I think it was like two to one. So the EEOC, in fact, took up the case on behalf of all of these female applicants, assuming that the test did screen out applicants with disabilities also in female applicants. Now there wasn't a decision on it because of the fact that Hirschbach did, in fact, settle, decide to settle the case for $3.2 million. But the kicker was, one, they could not establish that standing on one leg, touching toes while standing on one leg, and crawling was in any way related to being an over-the-road commercial truck driver, right? So when asked, you have to look behind the curtain and say that these types of tasks are, in fact, related, content specifically expert testified and studied related to the duties of over-the-road truck drivers. And Ginny and Tracy are going to talk to you about that process because that, if I were defending an employer, I would have to get an expert to testify about how, if I was either designing it as an employer or defending an employer that's being challenged, we'd have to show how that test is, in fact, validated on a professional level. And what I would say, too, is what gave the EEOC pause, and you guys will probably all cringe when I say this, is that Hirschbach also said that applicants, or I'm sorry, employees who were returning from leave had to be 100% rehabilitated from their injury, right? So we sort of know this phase in doing this work is that this phase of 100% rehabilitated or at 100% ability is not the legal standard or the applicable legal standard. You have to, in fact, say that you have to be able to return to work and be able to perform your job duties. What is the golden phrase? With or without reasonable accommodations, right? This isn't your first rodeo. So you guys understand that that test, it's not 100%, right, without any sort of accommodations. It's with or without reasonable accommodations. And so having that in a written policy, they're not the only, you know, employers who I've seen have that policy sneak in somewhere. So having that certainly also, I think, led to the settlement. So let's go to the next case, similar case, trucking. This actually was a pretty recent case from, I'm sorry, August of 2021, also over-the-road truck drivers. This actually did result in a judicial determination. So in this case, they were sued by the EEOC related to post-offer pre-employment and again return-to-work strength tests for drivers that allegedly had a disparate impact on both on female truck drivers in this case. Now these truck drivers, their main jobs were getting into and out of the cab of a truck, climbing on or off the back of a truck, inspecting a truck, stooping, crouching, cranking up and down the dollies that were stabilizing the trailer when you're connecting the cab. And some of these flatbed trucks that they had to drive, you had to secure some cargo straps. So Koch began using an isokinetic test that was developed by a third party. So many of you, I'm sure, have been approached, right, by third parties that say, we have a test or we can provide you the service, et cetera. They, I think, believed that that third party had vetted the ability to, right, scientifically stand up to scrutiny under this test. So this apparatus was developed by a third party company called CRT, which measured the range of motion, the torque in the applicant or employee's shoulders, the knees, and the trunk. And it computed this information to generate a body index score. Koch assigned a minimum body index score for jobs and tasks that were designated as medium or heavy duty exertion level. So certain tasks, right, the crawling underneath or the cranking of the connection, they said this should be medium and this should be heavy. And so then the third party provider said this is the score that you need to have for medium exertion, what an applicant or employee would need to test for medium exertion tasks and what they would have to do for heavy exertion tasks. And the data revealed that 92 percent of the males passed, whereas only 52 percent of the females passed, right, which is a disparate impact. So the critical issue here was that Koch could not show the test was even job-related. I'm going to grab some of my notes here so that I don't butcher some of the court's analysis. But the expert that the EEOC hired evaluated the job duties that these truck drivers had to undergo. And he said and he found that no evidence of the validity of the CRT test, the strength training biokinetic test, conforms to any accepted method for establishing job-relatedness. He specifically found that the job tasks that Koch applied in 2009 and 2015 did not document the physically demanding tasks of the driver position and they could not substitute any validation strategies for these tests. Now the court said in response that some level of physical strength is required to be a driver at Koch. You could substitute that analysis in for any job, right? Some level of physical strength might be required to perform any job. But it is not enough for any Koch in this case or any employer to gesture generally at the physicality of a job, say that it requires either medium or heavy exertion levels, and then manifest a relationship to that job employment in question by saying you have to do medium or heavy exertion and here, here's a test. There was no scientific validity to the test that they were applying. They were just sort of waving their hand and saying, oh, this requires heavy, this requires medium exertion. That the vendor could not offer specifics, the court went on to note, about the test, the drivers, or the specific validation procedures used. The vendor had developed a general kind of every job for a truck driver analysis and really could not use or justify it in how they reached the scores for medium or heavy exertion. So what did the court do? The court granted summary, what's called summary judgment in the legal field. This case did not go to trial, in fact. So the employer never went to trial. They, on their papers alone, the court found in favor of the EEOC and these applicants. Now there was a separate damages phase, and in fact, that's undergoing right now, kind of going on. So we don't know, I don't know how much they were awarded as far as damages, but I have to imagine it was significant because the EEOC, of course, reported it in press release. But in doing so, in reporting on that press release, I think it's important to note, because the EEOC is taking a heightened evaluation of these types of tests, whether it's medical exams, right, job-related medical exams, or physical agility or ability testing, the EEOC is having a hyper focus on these types of tests. And so what the EEOC's district director out of Illinois said, and I think it's important, employers are allowed to use hiring screens, and they are allowed to use physical abilities testing when appropriate. However, when a hiring screen has a disparate impact on female applicants and employees, like this CRT test did, employers need to take a hard look at whether they can prove those tests are job-related and consistent with business necessity. The fact that a job requires some physical strength will not by itself justify the use of any physical ability test, any particular physical ability test. The test has to actually fit the physical requirements of the job or be shown to predict an important job outcome. This case is an important reminder to employers. So let's talk quickly about, and then I'm going to get into two or three examples, but let's talk quickly about employer wellness and fitness programs. So how many of you do fitness programs? So a bit, yeah. So know that there's a lot, generally, if they're voluntary, right, employer wellness and fitness programs are generally legal. You just can't incentivize or penalize an employee for participating in a wellness program to make sure that it's, in fact, voluntary, right? So you can't offer somebody $10,000 or $100,000 and say it's voluntary. It's going to be so incentivized that it's not going to be deemed by the law to be voluntary. It could be coercive or if there's a penalty for not participating, then it could also be deemed coercive and it would not be generally legal to require them to participate in such a program. So off the cuff, generally, EEOC guidance is that if you're offering a voluntary wellness program to employees who are covered by your employer insurance, the maximum incentive can be 30% of the value of the individual insurance plan or cost to you. So if it's $6,000 of the overall cost to you and the employee for an individual to participate in a health care plan, you can incentivize them up to $1,800 or 30% to participate or penalize them for not participating in the plan and meeting certain voluntary metrics. Again, an employer who conducts medical exams is part of such wellness programs. So if you're going to have them undergo medical exams as part of this wellness program, any information that is obtained regarding their medical condition or history must be obtained and maintained in a separate medical file and it should be treated confidentially just like any other type of file. So not given to supervisors, not given over to the employer, et cetera, without releases and so on. But it's also generally HIPAA protected. So let's transition into fitness for duty exams following employee leave. So this is employee goes out on leave for their own medical reason. What can I do if they're returning to work? An employer may require an employee returning from leave to undergo a fit for duty exam before returning to work when you can demonstrate that it has a reasonable belief that an employee's current condition may prevent him or her from performing their job. So you can't just say blanketly you go on leave and you have to take a fitness for duty exam before returning to work. You have to have a reasonable belief and that exam has to be narrowly tailored to that reasonable belief. So I'm going to fast forward really quick to the next case. So Porter, the U.S. Alamed company, private case, employer's requirement that an employee who had suffered a back injury and he was out on leave that they had to undergo a fitness for duty examination prior to returning to work was not held in violation. Why? Because he had suffered a back injury and the examination, the physical agility test, was limited to the scope of the back injury. It wasn't a full-blown agility test for every sort of issue under the sun. Generally, pardon me, again, if you have an employer, you can require a fit for duty exam from an employee returning to work after taking FMLA leave. You have certain requirements that you have to tell the employee ahead of time. It has to be in your policies. You have to do it for everyone. You can't just pick and choose, etc. But you generally have the ability to apply and require a fit for duty examination after taking FMLA leave. And if the employee needs extended leave beyond FMLA leave, you can also require that as well. You're not giving up that right just because they are returning to work, first taking FMLA leave and then maybe taking an additional extension of leave. So periodic physical agility testing, right? So this is the non-medical exam piece, right? We're not undergoing a medical exam. This is simply testing the physical ability to perform job-related functions. This is the least regulated area, the most permissible ability testing that you can have for an employee. And it says under the ADA, right, physical agility tests are not considered medical exams, meaning that you can conduct them at any time, provided that they're given to all similarly situated applicants or employees, regardless of disability. So you can do, we can require a once-a-year physical agility or ability test for all employees in a certain job category. So whether or not it's all police officers on said police force, or if you're working in a manufacturing company, so it's all dock loaders working within that position, you can require every six months, every year, you can require them to undergo physical agility testing to make sure that they can perform the essential functions of their job. Now if, and you can also use a physical agility test in the post-offer pre-employment realm as well, right? So you can require that as well at that period. The sticky part is if it has a disparate impact, right, on certain categories, protected categories, you're going to still have to show that it's job-related and consistent with business necessity. However, we'll talk about what is job-related and consistent with business necessity. I think this is really key, is that physical agility testing, you can conduct it at any point in time for current employees, so long as it's given to all similarly situated applicants. So it's a really big tool, right? If you have, if you generally don't understand if your current employees want to or are able to perform job duties, you can have them undergo this type of testing. So what is the difference? What is the legal definition? What is the difference between a medical exam and a physical ability or physical agility test? Well, one is this is consistent with EEOC enforcement guidance. So I should say that it's not from a case, but it's whether the test is administered by a healthcare professional. Now this isn't a, if you meet one of these criteria, it absolutely is or it absolutely isn't. It's a weighing and balancing of the factors test. So if you meet two or three or four of these requirements, it's going to be a medical exam, right? So let's say if you have it, the test administered by a healthcare professional, but all of the other criteria aren't being right or falling on the other side of agility testing, then it's possible that it could be, if that's the only factor, it could still be a physical agility test and not be considered a medical exam. The second is whether the test is interpreted by a healthcare professional. So not just administered by, but again, the test results are interpreted. This is, I think, truly the third through the fifth, I think, are the more meatier ones. Whether the test is designed to reveal an impairment of a physical or mental health characteristic. Whether the test is invasive. Right? So if you're just observing somebody as opposed to invading their physical space, their mental space, et cetera, if you're doing physical testing on them, et cetera. And then, of course, whether the test measures an employee's performance of a task or measures his or her psychological responses to performing the task. So meaning their healthcare responses, heart rate and blood pressure, generally, right? So if you're generally taking heart rate and blood pressure, and this is, again, the push pull of the medical community, I want to have my employees undergo a physical agility test, I want to make sure that they're safe, don't I need to take heart rate and blood pressure? If you're doing so, there's a possibility that you can sort of land into the realm of medical exams. So I caution you about that. Whether the test normally is given in a medical setting and whether medical equipment is used. So those are the criteria to distinguish whether or not you can do a physical agility or ability test and do it at any time for employees in the same category or whether or not you're really conducting a medical test. I ask you to self-evaluate whether or not, right, you think you're giving a physical agility or ability test when really you're giving a medical test. So employers are prohibited from establishing employment practices, again, that create a disparate impact on certain employees based on their race, color, religion, sex, national origin, disability. So how to determine if a physical agility test is job-related or a medical test is job-related and consistent with business necessity. This is the legal definition under the ADA that says if it is in fact consistent with business necessity standards and is job-related, then if it's shown to be for the position in question and is consistent with business necessity, it won't be discriminatory, even if it creates a disparate impact. There's no actual definition of what is job-related and consistent with business necessity in the ADA or Title VII. You can scour thousands of pages of regulations and there's not a definition of what single test is job-related and consistent with business necessity. Why? Because it is specific to each job. We can kind of garner what it is, but under the federal statutes, there's not a specific definition of what is job-related and what is business necessity. Case law has developed certain standards that we can look to when we're determining this. Also California, for example, and other states' laws do provide certain definitions. So if you're in a state that might have a state law or you're operating a state that might have a state law that defines it, you should be aware of that. So in California, job-related is typically defined as tailored to assess the employee's ability to carry out the essential functions of the job or to determine whether the employee poses a danger to the employee or the others due to disability. And business necessity means that the need for the disability inquiry or medical examination is vital to the business. Again, when we're getting into what is the term valid, right, job validity or job-relatedness, a test is valid, right, if a candidate's test performance can be used to make a better prediction about how well he or she will perform on the job than might otherwise be possible without the test. Thus, professionals in the field of employment testing often use this term valid, right, job validity or job-relatedness when we're talking about job-related and consistent with business necessity. It's not an all-or-nothing concept, and various tests have different degrees of validity. The same test may have different levels of validity, different levels of criteria and validity in different manners. And Ginny and Tracy are going to talk to you about those types of tests. But the three tests that the law, case law, has talked about are content validity, criterion validity, and construct validity. These are three different approaches when you're talking about a job, and you're evaluating a job and its duties, and you're saying, I'd like to test in my, right, in my lab, in my practice, et cetera, I want to develop tests that will test whether or not this person can in fact perform the job. How do I do that? Instead of using this CRT test that makes certain assumptions, how do I go into a lab? How do I analyze the job duties and have it stand up to legal scrutiny? This is where the rubber hits the road, so to speak. There are three types of validation strategies to make sure that what you're doing, right, when you're undergoing a physical ability or agility test, is in fact job-related and consistent with business necessity. The first is the most widely recognized. It's called content validity. It is a validation strategy that requires an evaluation of the extent to which the content of the test is adequately matched to the content of the job. So they're going to evaluate the content of the job, each specific test and job duty, and then measure it against what would be, right, the content of the test, an essential function that isn't in fact lying on the side of the road pumping a crane to lift a truck bed to make sure that you can change a tire, but what can I do to represent that in a uniformed setting? How can I test that? A pre-employment test can be judged to be content valid to the extent that it represents the contents of the job. So that information about the content of the job is determined and obtained from a job analysis study. A job analysis study is sort of this on, in the job, evaluating and watching it to determine if it's in fact valid. And then a content validation strategy usually results in a work sample test or a test that simulates the important aspects of said job performance. Criterion-related studies are typically empirical, right? So you're using mass amounts of statistical data to show who is and is not successful in the job to the extent that the performance on the test is statistically related to the performance on the job. So people undergoing this test and passing it are going to be 99.9% able to perform the job studies when compared with job effectiveness. This is a little more complicated because you're combining a little bit of content validity compared with criterion-related type studies. But usually there's a lot of empirical data to talk about and you need a lot of data sets to focus on your criterion validity studies. And then the contract validity approach, I'll just briefly touch on it. It's the least used generally and it's more theoretical. I've never seen a case that was only supported by contract validity approach, just saying there could be one out there. I've not read every single case challenging this, but I've not seen it widely used to support a job fitness for duty or fitness agility test. So let's talk about, we have two case studies that I'm going to talk about. Am I okay on time? Yeah. Okay. So two case studies we're going to talk about. One is the city of Erie. So for you Pennsylvanians, I'm from Pittsburgh, it's Erie. This was a pretty big case and resulted in about a $21 million settlement against the city of Erie police force. This was a long used test for police officers who wanted to join the city of Erie police force. And the city, the federal government sued the city of Erie, alleging that its use over a several year period of physical agility tests, again, not a medical exam, but a physical agility test was used as a device to screen out female candidates in violation of title seven. So let's talk about what they did. So the test consisted of a 220 yard run during which each applicant was required to negotiate four obstacles. One they had to jump over a six foot wall, another they had to immediately after climb over and into through a window. Then they were required to negotiate under a two platform, a platform that was two feet off the ground. So they had to sort of military crawl along the ground. And then they had to negotiate over another four foot wall. And then after they did that 220 yard run, then they were followed by a pushup component and a sit up component. Now the major issues in designing the tests were found by the court in showing. So the EEOC and the federal government sued the city of Erie saying this test that you made these people go through had a hugely disparate impact on female applicants. They failed at a rate much higher than male applicants. So you had to prove up, is this job related and consistent with business necessity? How did you design said test, right? Well what they did was two officers on the police force were tapped to design the test. They were not physical ability professionals. They were not PTs. They were not medical doctors. They were not occupational therapists. They relied on their experience to say this is what I do in my job. They did not rely upon any external academic or professional opinions or studies. They conducted informal studies of their experience. They relied upon their personal experience of what they believed would be necessary to pursue a fleeing suspect or apprehend a perpetrator. They conducted sample testing with other current officers, had them say yes, this is what I believe to have been reflective of my job, et cetera. But they really didn't have any methodology used. And I don't believe that these two police officers who were tapped, right, to do this had any discriminatory motive in their mind to try to keep female applicants out. But they weren't experienced in the field of designing a pre-employment test. They relied upon their nonprofessional experience of what they believed they did. In fact, some additional details. After they designed the test, the city used the number of push-ups and sit-ups performed by 19 incumbents. They said we used, whenever we were designing this test, the median number, because these were incumbents who we thought once you got into the job, you got a little, you weren't able to do it as much, so we used the kind of lower end of the test. Because incumbent test takers on average were older, and they wouldn't have been able to do it as fast as new officers coming in. This individual lieutenant who was also designed to take the test said he believed that an officer's physical conditioning usually deteriorates when he or she is on the job, so they felt it was appropriate to hold new applicants to a higher standard. The major issues in designing the test found by the court were show and showing the job relatedness. The city approved and adopted this test without consulting any experts in the areas of physical abilities, job analysis, physical or other requirements, employment testing, or validation. There was no exercise physiologist or industrial psychologist used, et cetera. So it was $21 million. They had a settlement. For a city of Erie that size, it was considerable and certainly, I think, crippling. But it also set the standard for that type of widespread test to show that you can't just use internally people who are used to doing the job. You have to have a professional outside that is skilled in the test validation scenario. So let's pivot just a little bit to a similar case. This is in Marshfield Police Protective Association and Wisconsin Professional Police Association in the city of Marshfield. This is in the city of Marshfield, Wisconsin. This is regarding an officer discharge case. It was decided in 2021. And in fact, the reason we're using this scenario is because Tracy, Ginny, and I were all directly involved with both designing, validating, and then litigating the case after all. So both Ginny and Tracy were involved in designing this test. The city of Marshfield implemented a job function test. One of the tests involved a quarter of a mile run that required completion in two minutes and 15 seconds. The officer who was grieving his discharge after not being able to complete the test challenged the run portion of the test, because that's the portion that he failed, and challenged that the time frame was, in fact, invalid, wasn't job-related. The union did grieve the discharge. The arbitrator's question to be answered, he was framed with two, so I want to be accurate because this is the arbitrator or judge's questions that he was designated or tasked with answering, was the time of two minutes and 15 seconds for a quarter of a mile run validated and job-related, and did the city violate the collective bargaining agreement when they discharged the officer for failing the run portion of the test. So kind of spoiler alert, we'll talk about the sausage-making of the test a little bit later, but the arbitrator's determination was, in fact, that the two minute 15 time frame was job-related and consistent with business necessity. So the city of Marshfield prevailed. The arbitrator upheld the determination of the officer, and again, we don't relish in that by any means. Tracy will talk to you about what she did with the officer to try to sort of rehabilitate him and what the steps that they could take were, and in fact, what the arbitrator highlighted in doing so. And also, we'll talk a little bit about the reasonable accommodations that were made for him in undergoing this test. So I'm going to turn it around with that background knowledge on sort of why it's important to be job-related and consistent with business necessity and where we are in the law. I'm going to turn it over to Ginny to talk about how you actually create a content-valid test. Do you want to use that? That's hard to follow. She's a great act to follow. So as we move forward, hopefully my slides are going to move forward. Let me stop on that for just a second. Let's stop for a second before I show you that. So what's the value of this type of testing to you? I mean, you probably feel a little nervous after hearing all of that. But as professionals who offer employee health services, as employers who receive those services, when you go through a content-valid approach, there's a huge value. I've heard over the last couple of days presenters talking about the importance of not just return on investment when we do these kinds of programs for employers who are seeking to hire and place successfully, place employees that are going to be able to do the jobs and be able to stick with them for a long time. But that value of the investment. And the whole process of going through content validity really accentuates your relationship with employers, which is what most of us want. Whether you're the employer or you're the service provider, you're developing long-term relationships that are built on trust that are going to really keep you working together, hopefully for years and decades. And that's some of the experience that we can talk about, Tracy and I, is that we have experience with employers that span decades. Maybe not decades for you, but decades for me. I'm old enough. Okay. Old enough. So, you know, we want the whole process of designing testing to be a positive one. Not only for management, but also for the employees. Because we need them to buy into the process and to believe that any testing that's done for any reason, from hiring through return to work, through annual testing, whatever the case might be, that it is accurate and that it is reflective of their work and that it can be trusted as it's used for the various things. For training, as they're onboarding, for maintaining a level of fitness and conditioning and safety as they go through their employment. And you, as those occupational health professionals, are their guide. They are looking to you to help them understand, what jobs do I really need to focus on? You know, where are our risks? We can look at the data, but they're also looking to you to provide those services. So what we want is, in content validity, we want everyone to understand the relationship of the test to the job. Crystal clear. So that the employees, the supervisors, the human resource department, the safety professionals, and those of you who are the physicians and the caregivers, can all communicate very clearly on what the job requires. And I'll show you a little example of that first, but picking up off of where Kate was going with content validity, she said something super important. And that is, we have to prove job relatedness and consistency with business necessity in order to avoid a discrimination charge, which is where all those big dollars were coming in that she was speaking to. And it's really not that difficult if you have the right team members and the right approach to testing. And the value to the employer can go far further. So what I want to do is have you take a look for a minute at this news clip. This is to drive home the point of what happens when testing isn't well understood. This made the local news in Wisconsin. So let's take a look at this clip, and then let's take it from there. I think it'll go. Me and technical difficulty. Will this do it? No, that's the pointer. There we go. The UW Madison Police Department says 25% is not good enough when it comes to the number of female officers on her roster. Good evening. I'm John Stofflet. And I'm Elizabeth Wattis. It's above the current national average of 12.5%, but UWPD is still searching for ways to recruit more women and eliminate barriers along the way. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. And we see 15, Michelle Bette joining us live. a new kind of annual fitness test for its officers. We were able to base that test off of things that we actually functionally do while we're working. The development comes as the state of Wisconsin takes other measurements before awarding badges. According to this testing manual, a police officer must complete exercises like 30 sit-ups and 23 push-ups in a minute. The manual writes these standards predict safe and effective job performance. That was never something that I had to do. I mean, I had to have upper body strength while on the job, but maybe not specifically having to do two dozen push-ups. And I think that those have some limitations in terms of how accurately they reflect what the job entails for a police officer every day. For Chief Kristen Roman, striving for accuracy goes hand-in-hand with opening doors. She points to state data and says female police recruits fail the state fitness tests at a rate roughly eight times higher than male candidates. We're not alone in the disparate impact that we're experiencing with respect to those failure rates on that physical readiness test. So I wanted us to explore what could we do internally to offer our officers a set of measures that's more reflective of what they'll actually need to do when performing the job of a police officer. UWPD is setting different standards in hopes of adding diversity. UWPD says this new test won't replace the state exam, but the chief does hope the state will take notice of our team's efforts and revise their standards. The Department of Justice is in charge of creating those measures, and I've yet to hear back on what officials there think about any changes. Live in the studio, Michelle Beck, NBC15 News. Michelle, thank you. UWPD has also pledged to be a part of the national initiative called 30 by 30. Now it aims to bring their representation of women in police recruit classes to 30% by the year 2030. Okay. So mitigating discrimination concerns. It requires that testing be job-related and consistent with business necessity, and function-based testing can take us in that direction. So how do we get to function-based testing? Well, as we heard Kate mention, we need some expert help. We need some individuals who are trained in how to conduct an analysis of a job in order to determine what the physical stressors are that are related to that job and document them accordingly, okay? And this goes further, as you'll see in a minute, to be reviewed by workers as well as supervisors and other representatives of the company as to whether they are accurate or not. So once that analysis is conducted, then what we want to do is write up a description, a function, an essential function-based description that can be used for guidance. And that essential function-based description is a great tool in your hand, even before we get to how you can use the agility test. So once that document is created, it becomes the base for testing. We want a clear relationship established and documented between the analysis, the description of the essential functions or the job function-based description, and the agility test that accompanies it. So although we can test other than essential functions, that's allowed, you can't base decisions on return to work or hiring only on, you need to focus those decisions on what are considered the essential functions. So a bit of an example here. An individual that's maybe hired by your organization, whether you're an employer or you are an occupational health provider, goes into the field to analyze a dairy operator position. And based on each of the essential functions, which may number four, five, six, somewhere in that range, are described in terms of the force demands and the movement and position demands that are associated. And then there's some detail. So the whole idea behind these individual descriptions is to effectively communicate to anyone who would read this document what it is that the dairy operator needs to be able to do. This could be any job, right? And we're, of course, more focused on physically demanding jobs, usually. So in this case, imagine where your milk is coming from. There's a pasteurization process that requires lifting, pushing, and pinching forces, as well as climbing and bending components. So those are described in more detail, such as climbing four rungs of a ladder to the top of a tank. A total of five tanks are tended to. Six times during each shift. So that climbing occurs with that frequency. There's a lifting component. This is a bag of milk lifted in a range of five to 56 inches, which is stacked on a pallet and placed on a cart or a shelf for transport at 12 or 33 inches. These specifics are so that any testing of lifting is going to be related to the ranges in which the individual worker has to lift and handle them. There's a push force described here, which is related to connecting an elbow. Additionally, while in a tight, low ceiling environment with needing to duck under a 59 inch barrier. So you see it described here, how it might look when that individual is actually applying that push force. And then there's some hand force here. A pinch involved, a two point type of pinch to tighten and loosen valves. So this is based on measurements taken with instruments. Within the workforce. It involves the employees. They're very intimately involved with this process, which is part of what starts this relationship. Because they are not tested around in this analysis process. They are involved in this process. And that begins the relationship of buy in and trust because of their level of involvement. So once that description, well let me go back to the description for a second because I want to ask you a question. Either as an employer representative or an occupational medicine health professional, medical professional, how would this information help you? Just merely knowing what it is that individual that might be your patient that you're making critical decisions on return to work. How valuable is it to know that information? Okay. So even if you must still consider in the restriction model, in other words, you're not prepared for testing yet, could you look at this example of this particular essential function and be able to turn back to the employer and advise whether or not that employee is able to do the pasteurization process or not? And what I would say to you here is what you're doing is you are interpreting your restriction by advising the employer more specifically about what the employee can do. Okay, one of the most difficult things, employer representatives, raise your hands if you agree, is to interpret restrictions in the workplace. Yes? Okay. Very difficult. Okay, so we can go further though. Within the confines of the law, as Kate has described to us, we have a job-specific test which we will go further with validating so that we know that everyone agrees that this reflects the job. And we're going to design a test. So now we're going to specifically test climbing a ladder. We're going to specifically test lifting in the ranges that the job requires. We're going to specifically test the ability to push with adequate force at the appropriate height in the appropriate stance because it's a physically high-stress environment in which that push force is conducted. And then we're going to look at hand strength in terms of testing pinching in order to determine if an individual meets the minimum physical requirements of the pasteurization essential function. Now imagine if we knew that fundamentally there were five possible areas that a person could be assigned within their job, pasteurization, sterilization, maybe some other areas, and you would be able to identify which of those essential function demands the employee would be able to do, either by applying through your restrictions or by having the individual tested, having these scores reflected back to you for decision-making, okay? So I like to say think of it like ordering any test where you're looking to identify the results and then make the determination of whether or not this individual is ready to return to the particular essential functions that are required of the work. So as we go forward, when we're in the design phase, we really need to understand if we are accurate. So again, we're back to content validity. Our studies are of the particular job or jobs. And so we are turning back to the internal individuals to guide as to whether we designed well. So we're looking to the employees to give us input on whether or not it's accurate. So they do so by reading the document. They also do so by going through the testing in very specific ways under specific guidelines so that we, as the experts who have designed these documents and develop these tests, have a high level of assurance of accuracy. So it's very much, it's between the employer and the designer who would represent perhaps the occupational medicine practice who has recommended this particular jobs in order to help their clients reduce injuries and improve retention of employees, which is so important today. So it's very positive environment. Oh yes, those unions. They need to be involved. Most of the union representatives that get involved are also workers, are also skilled workers who need to have as much involvement as any other skilled worker in the analysis phase and in the test development phase. I would say that was an important factor in the Marshfield case, trying not to spoil, but in order to say that the due diligence was done by the employer to assure the accuracy, to have adequate data, and to have gone through the steps that are necessary for a judge to indeed say that the employer had met their due diligence. So let's get to the really good part. So she'll tell the Marshfield story, but she's got a few other cases to share, so here's Tracy. Thanks, Jenny. How's everybody doing out there? It's 5.15, who wants dinner? Okay, I promise I'll be brief. Oh, thank you. All right, so post-offer testing, I think we can all agree it's a good idea. We should probably be doing it in some capacity to help with, I can use this one, right? Okay, I'll give you this one, all right. It'll help in some capacity, right, to evaluate the function and the ability of those workers before they come in and rule anything out, so we can agree to that. So what I'd like to share with you is a couple other cases that maybe you didn't think about your testing program and see how it's actually helping that worker get back to work. This particular case, I was called to, and these are all personal cases of mine that I'm sharing, so I was called in, they had a worker that sustained a foot amputation at work, went through extensive therapy, extensive rehab, he was on his final clearance with his OCMED doc, who he became very close, which I appreciate working with the OCMED docs, and we decided to implement some type of measure to ensure, as Kate told us, is okay, to ensure that he could physically do his job. So we went into that employer, we analyzed the job, we utilized all the processes that Ginny talked about, and were able to come out on a very positive end to identify that it is very safe for this individual to go back to their normal functions. If we had to look for any type of accommodation, we were able to evaluate that and discuss it at that time, but the value that the testing provided to this is he may not have been able to come back as quickly as he did with that foot amputation, because there may have been other processes that would have slowed it down. Again, thankfully, this employer thought about testing as an option to ensure that this worker could actually do the job. So we saved his job, it's a good thing, right? This next one was a wastewater treatment specialist that sustained a work-related shoulder injury. They went through an extensive rehab response program, which I'm sure many of you have this, where they get seen immediately, right? You utilize OSHA first aid principles. So with this particular injury, we were able to implement light duty right away, no days lost, right? That's huge, okay? We did a job analysis and we did early testing. Now, this individual was on light duty, okay? And they were expected to return to work in about eight to 12 weeks. They had a pretty extensive rotator cuff strain that was occurring, wasn't a tear, so we were able to use conservative measures to take care of them. But because we utilize testing, this individual just healed a little bit differently and maybe the extent of that injury was not as large as the physician expected. And so with testing, we evaluated them every week to see how and where they were at on their physical abilities, utilizing the job function test. We were able to bring them back six weeks sooner. That's $8,000 that we saved that company and over time alone, I'm not even talking about all the medical costs that are associated with that. So again, these are real people, these are real stories, and these are opportunities where testing can leverage the ability to bring them back to work. Now, I'm certainly not going to disagree with the fact that you're probably thinking in your head, yeah, Trace, but it can also slow it down. You're right, it can, okay? In this next case that I share with you, this was a return to work case. This was a non-work related and a very complex back injury. And I know from several presentations over the last two days, we see a lot of these, okay? And so this was one of those cases where we didn't know how this individual was going to perform, when they were going to come back to work, okay? And testing was actually utilized to slow them down, okay? To communicate with the physician and the physical therapist to say, hey, they're not ready yet. They're not ready yet. They're not ready yet. At one point in time, this employee said to my team member, Sally, who's in the picture here, I don't think I'm ever coming back to work. Why are we wasting our time? That's real, right? So someone that's given up on hope, the mental health aspects that we've heard earlier in several presentations, he was giving up. We kept utilizing testing as an opportunity to show him progressively how he was performing on his physical tasks at work. He came back to work. It took some time, but he came back to work. We kept him engaged on the physical aspects of his job. So again, there was some ergonomics. There were some things we needed to change to help him. And I think that job task analysis, please don't underestimate that as a tool in your toolbox to help these workers keep going. We know right now that across the world, there is a recruiting and a retention problem in work, all work, even in healthcare. We need to do a better job of taking care of our workers and truly assessing, and I heard this on day one with someone else on a different topic, but truly assessing their work functions. You can do that utilizing testing. Let that be a tool in your toolbox to leverage a speed-up or a slow-down model, or again, keep these people emotionally and mentally engaged in their work because they're performing physical tasks that they actually do at work. So to talk a little bit about the city of Marshfield testing case here, this was a long process. And when I say long process, this took us about five years to create and truly validate the test that was associated with this particular organization. Utilizing periodic testing with content validity is not very popular, to be honest. Most testing that you see in the law enforcement world resolves around that construct validity that Kate was talking about earlier, job simulations, replicating things very similar to the military. I think it's quite interesting now the Army recently changed their physical fitness test from a push-up, sit-up, two-mile run to things like lifting and carrying and pushing and pulling and more functional-based tasks that soldiers are required to do. I think that we'll start to see this trend in the public safety sector as well, and I commend Marshfield for being a bit ahead of their time on creating a test in this manner. And so with this testing process, there's policies and procedures that need to go with it, as Kate alluded to. In this particular case, because I know many people are interested, there was a remediation program for that particular officer. He did comply with it, he did walk through the processes, they did look at any type of ADA accommodations that need to be there, and at the end of the day, on the last day of testing when we're proctoring the test, and he wasn't able to make that run two minutes and 15 seconds, that was a very sad day. And if you've been in the position as a healthcare provider where you've had to tell somebody, you know what, it's not safe for you anymore. That's a really hard day for anyone. That was a really hard day for me. So yes, we were able to successfully defend this case. You know, we did all the right things when we set up the testing and when we proctored it, but it was still a really sad, hard day to tell an officer that he can't be a police officer anymore. So in this testing, I think the takeaways here are one, evaluate your program. Is it legally compliant? When is the last time somebody took a look at your test? Was it two years ago? Was it five years ago? Was it 20 years ago? When is the last time? And if you're proctoring the test and you're saying to yourself, not really my responsibility, is it? We're the ones that have to evaluate their worker functions and if we don't have accurate functions in front of us, are we truly serving those individuals that we have promised to serve? Second takeaway is ensure that you're utilizing the tests in a return to work fashion. I think there's a lot of positivity and just progressiveness that can come from utilizing testing in this space. Whether you utilize a formal type of functioning process like Jenny suggested, or utilize your own process, just make sure you're evaluating those worker functions. We talk about it, we talk about it, but it still gets missed and I'm speaking from experience of working with occupational medicine providers in Wisconsin, maybe it's just Wisconsin. I know what happens, so let's just try to do a better job at that to make it easier for that worker. And again, keep them working. Most workers in this workplace want to work. They don't want to be the dirty malingerers that we talk about, okay? So let's help them, let's get them there if we possibly can. If Jenny, Kate, or I can be of any service to you, please feel free to reach out to us. We're happy to share our PowerPoint slides. So there's a very thorough handout that we have provided for the conference today. And with that, we will take any questions. We got six minutes. I have a question about the like a physical abilities test. So if you already have one in the beginning, and then they start training, and then they obviously have some kind of pathology that's, you know, they're not doing the training after they were hired. And then, you know, we can demand them off work, but then they, you know, they still get a return to work slip from a certain person. And so I'm unsure if we can just do the physical ability test again, or does it have to be different? Like the same one. So are you an employer representative? I'm sorry? So where tell me your background. Oh, I work for the city of Chicago. I work in public safety. In public safety. Okay, so if an individual does not pass, and are we talking? They pass the first one. They pass the first one. But then they choose to pass while they're physically, you know, impaired. Okay. So if they are able to pass the test, then the criteria for passing should be that they're safe and controlled. So they may still have an impairment. But are they safe for their work activity? So how do you argue that it's not safe for them, basically? How do you argue that it's not safe for them if they pass the test? You want to? I'm sorry? I would say to the extent that if they're able to perform their job functions, right, if they're passing a test, whether or not you're saying, I'm hired in year one, and they passed, and then fast forward two years, they've had an impairment, you think that they might not be able to safely perform their job functions. But in your example, it seems like they're still able to pass the test. Is that what you're saying? Yes, but they have like swollen limbs or... Right. Yeah. So A, you can, if there's A, if they're passing a physical ability test that's designed to test, you're really in a hard place. However, you're not, your hands aren't totally tied. If they've disclosed that they believe they can't perform, right, the test, or they're observed in a certain function not being able to do certain things of the job outside of the test, then you can, you know, have them undergo a medical exam as opposed to a physical ability test. So there are two separate things, right? You're talking about a physical ability test, they're successfully passing it. They might be displaying outward symptoms of some sort of condition that you suspect might impair their ability to perform their job functions. They're passing, still passing a physical ability test. If you have evidence-based to send them for a medical exam, you can kind of pivot to the medical exam and see if that turns up, but if that turns up clear, you can't worry about it. I mean, the law wants you to determine, and that's where we as medical professionals, you know, I'm not a medical professional, I shouldn't say we, you know, kind of cross the line into, we can't worry about that. You have to focus on whether or not they can perform their job duties. But can you do that same physical ability test, like for the return to work? Yeah, of course. For sure. So the beauty of the job-based physical abilities test is you're always comparing to the job. Whether it's hiring, annual testing, return to work, fit for duty, disability management, you're always holding the same standard. Well, what if one is a pre-employment and then one's, you know, the after-employment? Yeah, they should match. So if one of these has pre-employment, post-offer, and mid-offer, you should be testing the same things. Yeah, I think that's the common misconception, which is why we wanted to come here today and talk is, so many people see that the post-offer test is a different test than the return to work, that is different than the physical abilities. What we tried to show today is that you could use that same test for post-offer for return to work, and you can use it as a periodic physical exam, as a physical abilities test if you truly wanted to, you could utilize it in that capacity. Certainly utilizing the legal cautions, but it's already been designed for you, you just need to utilize it. I think the other point that I wanted to make is, you talked about your test, when was the last time someone looked at it? If someone hasn't looked at it in the last two years, the like unofficial industry standard is every two years, as equipment changes, or as policy is updated, that should be recertified. And what we're finding quite often as we're talking to more and more people, is it's been 5, 10, 15, I talked to an agency in Alaska the other day, it's been 22 years since someone looked at their test, and they're wondering why they're having these problems, and they're wondering why they can't leverage their test, and it's because they haven't recertified it. So I don't know if that's helpful, we'll hang around if you want to dive a little deeper. Yeah, absolutely. I know we have some other questions, but we'll certainly be here whenever. Yeah, we're not going anywhere. Thank you for a very excellent talk, it's very useful. Thank you. First comment, I'm going to predict that by 2033, every ACOM course will require an attorney to be part of the panel. My question relates to the first case you talked about said the person passed the DOT, and I do want to point out that, as we've heard in our DOT courses, there are a lot of not really understanding the job requirements of a DOT. But the question I have is, how do you interact, how do you juggle, I guess, these different definitions of disability? I've learned that impairment is a medical issue that we in medicine deal with, and disability is an issue that you, the attorneys, deal with, and ne'er the twain meets. So how do you balance those? What's your suggestion? Sure. I think as an employer, whenever you're talking about disability, and whether or not somebody meets or is disabled, right, that is a really broad definition. Basically the definition under the ADA is whether physical or mental impairment substantially limits a major life activity, right, a physical or mental condition substantially limits a major life activity. So that's a pretty broad definition under the ADA and the ADAAA amendments, but it doesn't matter if they're disabled until and unless the point where that disability impairs their ability to safely perform their job functions, right? So anybody could be disabled on a given day or year or month, but it may or may not affect their job limitations. So I think kind of circling back, it's the endless question is, do you, whenever you're evaluating whether or not they can return to work or whether or not they can perform their job duties, do you even, you know, is there an accurate representation of what those things are? Many times I will work with my clients and I will give them or ask if they haven't, they'll come back, employee will come back and say, I can't work more than this or I need this amount of time off, right, and with their, from their physician, but the physician will have no idea. They've never been presented with a job description and if they have, maybe the job description is not accurate, right? So I think that ensuring that you understand the job requirements when we're talking about this kind of occupational medicine piece and clearing them either to return to work or accurately determining what their limitations are is kind of key, right? So I think that that's kind of the mesh that makes, blends the disability piece with the job related and impairment piece. Thank you for a great talk. I really appreciate it. I'm going to make a suggestion for your next talk. I know that it was implied, but cognitive issues is significant, especially with people who came back from a traumatic brain injury or a stroke with not only, and also kind of the quote unquote soft skills where a person who's going back to work as a physician or as a lawyer and who's having behavioral issues because of a head injury or a brain injury or behavioral. So that's another one that can be very challenging that legal guidance would, and I guess also medical guidance. I know for myself, I would consult with a treating psychiatrist or neurologist or neuropsych person, including medications as well where, so I'm just planting that seed. If you have any thoughts that you'd like to share, I would really appreciate it, but that's another black box that a lot of us are encountering that we would love to have guidance on both legally and otherwise. Thank you so much. I think that that is a huge kind of issue that is highly litigated because it's so fact specific. It is really difficult. There's not just a general, there are cases out there, but there's not just a general legal standard. I think you have to get into the details of what someone's cognitive functions are and have it be so highly supported with specialists understanding what they can and can't do, but happy to kind of take that into the next session for sure. Thank you. So first, thank you so much because I think this is a field that is poorly understood and oversold and misinterpreted a lot, and so I think you guys have done a fabulous job today kind of laying out the guardrails, so thank you for that, and I really love the application to the return to work because I don't think we use that enough. I definitely see huge value for jobs with intermittent high physical demand, right, where you do need to know, you don't climb a ladder every day. You don't lift 50 pounds every day, and so in your job, so when it comes, you're called upon to chase that perpetrator, whatever, you need to know the person can do that. What I struggle with are jobs that have daily chronic strain activity, so I've been working in healthcare for over 20 years, lots of nurses, lots of ultrasonographers, lots of patient transporters get injured, they do not get injured day one of their job. They get injured six months in, 10 years in, et cetera, and the perfect physical abilities test would be do your job, let me observe you do that job, but you can't do that for two weeks, right, to see if they can do it, so I'd like to know, you mentioned that there's workers' comp savings from this, I've been really skeptical about the ability of a single test on one point in time when someone's very eager to get a job at actually impacting workers' compensation claims in jobs that have daily high physical demand and have chronic cumulative trauma. Right. So, again, this relationship that you're forming, we talked about job analysis being a conduit to relationships, so what we didn't go into in this talk is the fact that physical demands analysis piece starts to discover areas of concern, high stressors, high physical demand stressors that we identify as ergonomic opportunities for investigation and begin to guide that employer down the road of mitigation of those high stressors, so that's number one, and that's a powerful conduit with the employees who are going, somebody's paying attention, so that's number one. With testing being a one-time event, we have to work with the employers to help them understand what we're testing and what the results mean, so we're identifying whether the individual meets a minimum physical requirement of the job, it doesn't end there, it starts there, so if they have to be in a job that requires endurance and build that endurance back up, or they have to re-acclimate, we don't like repetitive work, but we know it's out there, but if they have to re-acclimate to repetitive work, that those things are done over time, so return to works, return to works. In pre-employment, again, we need to look at helping the employer condition up the new hire, just like we would recondition someone who was injured at return to work, so what can we do to help them with developing a conditioning program, a training program, things that are going to help that individual be successful when they onboard, so I hope you start to see how this can infiltrate practices with services that are truly preventive in nature. Just one note on that, I think work conditioning programs can be really powerful to help that repetition aspect, I think one of the flaws that I see in work conditioning programs is not understanding the job, so I've come to too many employers where they have a work conditioning program and they're like, well, it's not working, and I'm like, well, yeah, it's not working because you're not having them do the job tasks, they're doing other things to build up their conditioning, which is great, right, but if they're going to be putting widgets together for 12 hours a day at a table, we need to have them practice putting widgets together, which can be productive work at the same point with that productivity, so sometimes that's helpful to weigh out those repetition aspects, so thank you. I would just add, the other thing is don't think about it as just only during pre-employment, I think that the bigger takeaway too is that you can do annual testing, and so you can identify an employee who might be having an issue before they have been injured, right, so if they're doing it wrong, if they're struggling, if they can no longer push-pull 25 or 30 pounds, but they haven't been injured yet to say that they really can't do it, which is a common thing that we see on the comp side and everything else, that's the perfect example of a physical agility test that's annual that you have every legal right to have them undergo, that before they have a workers' compensation injury, because they haven't said, I really don't think I can do this anymore, you're noticing that they can't do it anymore, at least do it properly, right, they're struggling to do all the bad ways that are going to result in an injury. So, one final question, I think, yeah. So a scenario that I've been faced with many times is an employer that chooses or requests their occupational medicine provider perform an exam on employees that are already employed, but the person is out of work, whether it's work-related or not, for a certain number of days, so what the employer will do is they'll say, well, our policy is that if you're out of work for three consecutive days, that you have to go to our occupational medicine provider and be evaluated with or without a physical agility test, it may just be an exam with or without the physical agility test, and I'm wondering how you would advise that employer, because based on what you're saying, it seems to me that you would have to prove that that is job-related and consistent with business necessity for that job category and then perform that for all those that are out for that amount of time for that job category, but it seems to me that some employers are kind of doing this across the board, where you're out for three days, person comes in with their private doctor's note, no, no, no, you have to go to our occupational medicine provider and be examined with or without your physical agility test, is that, how would you advise that employer? Yeah, so physical agility test, I would want to look into exactly what, you know, if you could substantiate that all employees in a similar job category are actually being, but if, made to undergo that test, but as far as a medical exam, I highly question if it would be evidence-based and if it's not running afoul of the ADA, simply being, if they haven't taken FMLA and you don't have an FMLA return to work policy and you're simply saying four days out, you have to undergo our medical exam from our OCMED physician, I generally and genuinely question whether or not that would sustain ADA scrutiny. You want to speak about sick time? So. That happens frequently and usually it's the supervisor says go to the clinic and then we have to return them back. Why are you here? Yeah. And at this point, it depends. Some people will hear us. They'll say, why medical exam? I have no idea why you're out. I don't have any documentation. And once his doctor hears him that we're fine, then I don't question because he's an incumbent. And if his doctor says he can do this much, he can do this much, he can do, and that's not the point. I have to accept it. I'm not, not the point. He's been tweeting him. So with due respect to this question, I won't second guess him. All I can say is his physician feared him. And at this point, he appears that he's able to do this. It sounds very edgy to them, but I don't know how else to say that. I think that points out that in the absence of objective job information, how can you answer that question? And I think if I were to climb on one soapbox before we wind up today, I would say that something we need to be doing is reaching out to employers as healthcare providers, as medical providers, to say, if I am to help you, you have to help me. We have to get accurate job information in order for me to answer your questions, whether it's to review a document, to provide your professional opinion, or to recommend for testing, to get clarity on the situation. I think we all have been held to making these decisions without adequate objective information. And if there's anything I want to say for 10 years out, let's really partner with the employers that we serve and say we really can't do the best job that we're able to do for you without you allowing us to get this information and put it in place. So it took me 13 years. I finally pushed them. So the first step is through the HR. And they are now defining the essential functions of the job for a police officer. And I'm expecting that when I get back, I hope to see that report. And I want to see the references they're using. But it's a very awkward balance. We're shifting the paradigm. I work for the defense department. So I find that people are used to just running it the way they want to. And it was almost like we just lost a DO case, for example, because they didn't have standards. The person had an ejection fracture at 28, had a heart attack two years ago, age 24. Insulin-dependent diabetic. Three opinions met. All saying no. And he went to EO. And the chair said, so I will get EO training. Yeah, absolutely. So I do think that's why. I appreciate it. But I wanted to tell you something. I can find your handout. Oh, it's in the app. It is in the app. It's a Word document. We'll be around if you want to talk more.

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