Safety and OSHA News

Screening out unsafe workers — legally

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What do you do with employees who have a history of injuries? Fire them and they may sue, but leave them on the job and they might harm themselves or others.

Now there’s a way for legally removing these people from the workplace.

Some companies conduct fitness for duty (FFD) evaluations in these situations. They’re similar to post-offer, pre-hire physical exams to determine ability to do the job. But FFDs can be done any time during employment and are broader: They determine physical, mental and emotional fitness.

A comprehensive FFD program would include:

  • pre-placement medical evaluations, often done with safety-sensitive jobs
  • absence management, including people who call in sick Mondays and Fridays and presenteeism, people not fully productive under stress from family issues or medication
  • for-cause drug and alcohol testing, based on credible report of impairment, and
  • pre-assignment clearance to new tasks or after leave due to injury or FMLA.

An FFD would withstand legal challenges if a company:

  • administers it fairly across the board
  • makes tests reasonable and job-related
  • doesn’t make decisions on past health records, such as cancer history
  • keeps test results confidential, and
  • gives a disqualified employee the right to submit his or her own evidence as to fitness for duty.

For more information on FFD evaluations, click here.

Does your company use FFD evaluations? Let us know in the Comments Box below.

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Comments

  1. I would think that the FFD would have to be preceded by training record or personnel record entries of counseling and additional safety training. You have to give the individual an opportunity to correct any personal problems or time to apply additional training. You also have to let the individual know that his actions and/or behavior are going to be closely monitored and any additional problems could result in his/her dismissal.

  2. These are about $500 a pop and the ones that I’ve had done resulted in short term restricted duties. When the employee is released to full job status the same health issue that made the employee a safety risk is still there. FFD can work in some situations but for me they have been an expensive evaluation of something that we already knew to exist.

  3. Bob Ramirez says:

    Respectfully, I disagree with the basis of your articles. Your basis starts of with the assumption that some workers are unsafe, meaning that some workers intentially come to work with the intent on harming themselves. I find that to be totally inaccurate. I agree that some workers perform unsafe acts (at risk behaviors), we need to examine why they do what they do. There is a reason they do what they do, and for that matter, all of us do what we do for a reason.
    In my years of experience in the Safety profession, I find that employee perform at risk behaviors because of the reward system that is there to support that behavior. end of project rush, going the extra mile to meet a tight dealine, the pizza and beer party, the bonus we get for meeting a tough deadline. Under these extraordinary situations, we even look the other way, if an unsafe act is being performed, (otherwise known as the big wink). So, if you want to avoid employees from performing unsafe acts, there are a variety of tools you canuse. 1. Be clear about what is acceptable behavior and what is not. 2. Enforce the rules fairly and consistently. 3. Do not allow foremen, supervisors and managers to “temporarily suspend” these rules during extraordinary cituations (end of quarter pushes).

    Some of the other tools you mentioned do indeed have their place but not to avoid legal issues.

  4. At will work state. Simply lay the person off permently with no reason to be given in an at will state. Problem solved. This should have been noticed in the probationary period by an observent surpervisor. Do not wait or hesitate. Must allow employee to collect unemployment.

  5. I’ve had better luck using training records and progressive discipline. In my experience, employees that are often injured fall into two categories. They are made to perform a behavior or they choose to perform a behavior that places them at risk. I will mandate training for them and they’re immediate supervisor, following up with discipline if the training is not followed. If you cannot learn and implement needed training you can’t work for my company. The key is a very clear process and paper trail of opportunities and support for the employee to improve performance.

  6. Pa, only because you live in a state : AT WILL does not really mean that you can fire people whenever you want to. Employees can sue for wrongful termination and in the case of an employee who is injured for discrimination. In this day and age it is very important to consult with a qualified HR person and/or labor law attorney before you fire someone. Many companies have had to learn this the hard way… After paying thousands if not millions of dollars in litigation costs….

  7. With the signing of the American’s with Disabilities Amendments Act into law, the definition of disabled as per ADA has been greatly expanded. Many more injured workers now fall under that definition.

    A fitness for duty exam does not get you off the hook for a possible discrimination law suit if a reasonable accommodation policy was not followed in those cases.

    If an employee is unsafe, an employer must follow a progressive disciplinary policy action BEFORE the employee gets hurt. An employer would also do well to determine the root cause of the unsafe behavior.

  8. In North Dakota, it is legal to get information from Workers Compensation for a claim history on a potential employee. Check the state you live in it also might be legal there.

  9. I would base whether or not to pursue progressive discipline or not on the unsafe act itself. I personally know of a situation where an unsafe worker was on the progressive disciplinary track when she died performing a job she should never had been in. She had a history of serious unsafe actions that alone should have terminated her employment but the company wanted to follow their policy with progressive discipline.

    It all depends on the situation. If you are caught without safety glasses, maybe a verbal warning is warrented. If you continually ignore lock out policy then you should terminate on the first offense. It would of saved this individuals life.

  10. I think this only works when there are extreme physical requirements for the position. I worked in national retail and delivery company. The delivery people would carry large products into customers homes that weighed approx. 300+pounds up flights of stairs on a regular basis. By using the pre-placement medical evaluations we successfully screened out 5 candidates with medical conditions that would make it unsafe for them to do this job in a given year. We also began to proactively manage our return to work program. Our premiums went down by half over the course of three years and our near miss and incidents reporting went up by 50%. I really agree with Bob Ramierez that its all about incentives AND about having management that are on board with a safety program… and good management understands that the short term gains in productivity of cutting a corner on safety do not equal or justify the long term costs and results of injuries not to mention lost productivity of when the worker can’t work and makes their staff even more short staffed.

  11. Vic,

    If you use the information found in a person’s workers compensation record as a reason not to hire the individual, you will likely find yourself on the losing end of a discrimination suit.

    This is what the EEOC has to say about Fitness for Duty (FFD) type medical exams in it’s recent proposed guidance rule making in the Federal Register / Vol. 74, No. 183:
    Ҥ 1630.10 Qualification standards, tests, and other selection criteria.
    (a) In general. It is unlawful for a covered entity to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.”

    That is not to say FFD exams cannot be used. However, a company needs to make sure everything on the exam is related to that specific job and involves an essential duty of that job. Does your company have a list of essential duties for each and every job? If not, you’d better have that in place before putting an FFD program in place.

    Pam

  12. In CT. we can obtain a report from the WC Commission that states the number of work related claims an individual has had. It will only report if the individual has filed a WC claim, date and nature of injury.

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