Some jobs may require certain physical abilities or strengths. These requirements should definitely be a part of your defined job qualifications. Making sure that employees are able to perform the necessary physical requirements of your job will not only help them do the job better and more efficiently, but it will help you avoid problems with workers' compensation and safety.
Americans with Disabilities Act
If you are an employer of 15 or more employees, you are subject to the Americans with Disabilities Act (ADA). The ADA is a federal law that protects people with disabilities from being discriminated against in all aspects of employment.
The law protects "qualified people with a disability." "Qualified" means that they have the knowledge, experience, skills, and education necessary to do the job. "With a disability" means that they have a permanent or long-term physical or mental impairment that substantially limits one or more major life activities like eating, walking, dressing, sitting, reading, hearing, working, reproduction, etc. It can also mean that they have a record of a disability, or they are regarded by others as having a disability (such as a person who is physically disfigured but is not actually disabled). "Disabled" does not include current illegal drug users, though it may include former users.
The ADA Amendments Act. Effective January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) significantly broadens the scope of protection available under the ADA. The ADAAA broadens the definition of disability by modifying terms of the definition. The ADAAA:
- expands the definition of major life activities,
- redefines who is regarded as having a disability,
- modifies the regulatory definition of substantially limits,
- specifies that the term disability includes any impairment that is episodic or in remission if it would substantially limit a major life activity when active, and
- prohibits consideration of the ameliorative effects of mitigating measures when assessing whether an impairment substantially limits a person's major life activities, with one exception--the use of ordinary glasses or contact lenses.
The ADAAA also adds a provision restricting an employer's use of qualification standards, tests, or other selection criteria that are based on uncorrected vision standards. It clarifies that an individual who satisfies only the regarded as having a disability prong of the disability definition is not entitled to reasonable accommodation. Finally, the ADAAA modifies the language of the ADA to state that discrimination is prohibited against a qualified individual on the basis of disability (the provision originally prohibited discrimination against a qualified individual with a disability because of the disability of the individual).
Basic tenets of the ADA. The basic tenets of the ADA, as far as job qualifications are concerned, hold that if an employee can do the essential functions of a job with reasonable accommodation, (under the ADAAA, employers are not required to provide reasonable accommodations to employees or prospective employees who are regarded as having a disability) then the employee should not be discriminated against in the hiring process or other employment practices.
Essential functions should describe the outcome of the job, not how it is performed. Suppose a sack handler job requires the employee to pick up 50-pound sacks and carry them from the loading dock to storage. The essential function of the job is to move the sack from the loading dock to the storage area. This can be done through use of a dolly, hand truck, or cart. The job description should therefore not list the ability to lift and carry 50 pounds as an essential function. The essential job function would be moving 50 pounds from the loading dock to the storage area. Thus, a person with a bad back who cannot lift 50 pounds above the waist could still perform all of the essential functions of this job, if a dolly or hand truck were provided.
Reasonable accommodation is a technical concept defined by the Americans with Disabilities Act. If you suspect you may need to provide reasonable accommodation to an applicant with disabilities, check with your professional legal advisor. Generally speaking the accommodation must first be requested by the employee, at which point you must discuss the individual's disability with him or her and determine what accommodation you will provide. Whether an accommodation is "reasonable" also turns on the cost of the accommodation in relation to your business's size and profitability.
Where safety is a concern. You may, however, refuse to hire applicants who pose a direct threat to the safety of either themselves or others if there is no reasonable accommodation that would either eliminate or reduce the significant risk.
The Equal Employment Opportunity Commission (EEOC), has issued a handbook to help small businesses comply with the ADA. The handbook is available on the EEOC's website. However, the ADAAA directed the EEOC to revise its current regulatory definition of "substantially limits" (the EEOC's regulations interpret the term to mean significantly restricted which the ADAAA rejects as too stringent) to be consistent with the ADAAA and change and issue regulations to conform with the ADAAA's standards.
When physical fitness or special standards of physique are needed for the job, reliance on a physical ability test as a part of the applicant screening process is the best protection against unsafe and inefficient performance.