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Post Offer Employer Medical Screening Tool

Post Offer Employer Medical Screening Tool

It is vital for private employers to understand what sort of medical inquiries may be made during the hiring process. The U.S. Equal Employment Opportunity Commission (EEOC) spells out the difference between lawful and unlawful medical inquiries under the Rehabilitation Act, the Genetic Information Nondiscrimination Act (GINA), Title VII of the Civil Rights Act of 1964, and the Age Discrimination in Employment Act (ADEA). Section 501 of the Rehab Act, which applies to federal employees, adopts the standards of Titles I and V of the American Disabilities Act (ADA). This article will help your company avoid any unnecessary issues with the ADA and other federal anti-discrimination laws.

Medical inquiries and the ADA: Key ADA restrictions on medical inquiries of applicants:

  • There is no exception to the straight-forward rule that disability-related inquiries or medical examinations are prohibited in the pre-offer stage of the application process.
  • If applicants must fill out any medical questionnaires prior to the receipt of a conditional job offer, use of the forms violates the Rehabilitation Act [and the ADA].
  • After a conditional offer is made, an employer may ask disability-related questions and require medical examinations as long as it does so for all entering employees in the same job category.
  • Once employment begins, an employer generally may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity.
  • In the post-offer stage of the application process individual applicants may be asked questions not asked of other applicants if those questions are “medically-related” to medical information previously received.

Offer Withdrawal

Under the ADA Amendments Act, withdrawing an offer based on the information obtained from a post-offer health history inquiry or follow-up medical questions will likely result in a finding that the applicant was regarded as having a disability. Therefore, the employer would be required to establish that the particular impairment renders the individual unqualified to perform the essential functions of the job or, where the employer has excluded the applicant due to safety concerns, that the applicant poses a direct threat because of the impairment.

When the applicant’s impairment substantially limits a major life activity or constitutes a record of a substantially limiting impairment, the employer’s determination of whether the applicant can perform the essential functions of the job must also include consideration of whether a reasonable accommodation would enable performance of the job functions or would reduce any direct threat to an acceptable level.

GINA-Related Considerations

Pursuant to Title II of GINA, employers are prohibited from requesting, requiring, or purchasing genetic information — including family medical history — from applicants or employees, except under very limited circumstances. Therefore, questions about an applicant’s family medical history or genetic information are unlawful under GINA. “There is no exception to the general rule prohibiting employers from requesting genetic information of an applicant in a medical questionnaire.

Title VII, ADEA

Part of the Peace Corps’ application process included post-offer medical questionnaires required only of applicants in certain protected groups — e.g., a “Mammogram Form” required only of women age 50 and over. Thus, it appeared that women and a protected age group were required to undergo medical tests not required of applicants outside of these protected groups. This requirement raised a big red flag under Title VII, which prohibits sex discrimination, and the ADEA, which prohibits discrimination against persons age 40 and over. An application process with these requirements is deemed “facially discriminatory.”

What does all this mean for employers?

The EEOC points to several best practices worth keeping in mind:

  • Do not subject applicants to disability-related inquiries or medical exams prior to a conditional offer of employment.
  • After a conditional offer of employment, make disability-related inquiries and require medical exams only if the same is required of all entering employees in the same job category.
  • After employment commences make sure that any disability-related inquiries or medical exam requirements are job-related and consistent with business necessity.
  • Any post-offer questions not asked of others must be confined to those which are medically related to medical information already provided by the applicant.
  • If an offer is withdrawn based on medical information provided by the applicant, make sure it can be established that either:
    • the particular impairment at issue renders the individual unqualified to perform the essential functions of the job; or
    • the applicant was excluded for safety reasons because he or she poses a direct threat due to the impairment.
  • Do not ask questions about an applicant’s family medical history or genetic information.
  • Do not make medical inquiries of or require medical exams for protected category members, such as women and older applicants, unless the same inquiries and exams are also imposed on applicants outside the protected categories
Oceaneering Safety Director Discusses Effective Communication in Occupational Health

Oceaneering Safety Director Discusses Effective Communication in Occupational Health

Safety Director Joe Lavender describes Oceaneering International’s experience with Taylor Made Diagnostics’ occupational health services. Mr. Lavender highlights the effective communication that they have enjoyed while working with TMD.

Transcript: It’s no secret that the ship repair industry is an aging workforce overall. It’s important that we take care of the folks we have and just give them the best care that that we can
provide for them through Taylor Made.

Oceaneering’s local branch is the Marine Services Division and we primarily do repairs on US Navy submarines and some other ship repair work. Taylor Made Diagnostics is one of the few I’ve ever come across that deals solely with occupational health care therefore they understand our industry. They are familiar with the type of injuries that occur in our industry and how to best treat those.

I remember when when she started with humble beginnings in a rented bank building.

The communication is very good. We don’t have to explain to them each time who we are and worry about insurance issues and all of those types of things. When we bring someone to Taylor Made the doctor or physician’s assistant who provides the care for that person personally calls you after the care has been given and lets you know exactly what was done what you can expect with this person and any follow-up care that’s needed. So that’s huge for us that we can actually talk to the person and get a good understanding of what’s going on. You can’t get that in most places.

How Can We Serve Your Business' Occupational Health Needs?

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Video: What is Occupational Medicine?

Video: What is Occupational Medicine?

Dr. Michael Picio our Medical Director explains what Occupational Medicine is and how it can benefit your company.

Transcript: Hi, I’m Dr. Michael Picio. I’m the Occupational Medicine Specialist and the Medical Director here at Taylor Made Diagnostics. We’re here to protect the health of your business and we do that by providing you the best occupational medicine care available for 25 years.

I’ve been a family medicine physician and I’ve done that on active duty in the Navy. You go out to sea you’re already in an industrial medicine environment. A ship is nothing more than a big floating factory. You’re already managing programs like hearing conservation and heat stress and radiology and ready radiation health. So these skills which I was already trained in now I’ve been doing every day. I wanted to formalize that to be an actual occupational medicine specialist.

I’ll summarize what occupational medicine is in just a quick fundamental phrase. It’s the specialty of preventive medicine and the diagnosis, treatment and management of workplace related injuries, disabilities and illnesses.

Objectively, studies have even shown in journals and publications that patients do get better faster and they recover much more quickly if they stay engaged in work. And that’s better for the company line because the bottom line is that they’ll make money. They’ll keep that patient engaged there’ll be more productive if they keep the patient at work.

It’s a different intellectual challenge that you bring to this job. The intellectual challenge of investigating whenever patients have illnesses that aren’t quite clear cut when they come in from work and the intellectual challenge of figuring out how to diagnose it, treat it, manage it and get the patient back to work.

If you come to Taylor Made Diagnostics not only are you going to experience the best occupational medicine available and the delivery of that but we’re going to be serving your company as if you’re the only company we have. We’re going to make sure that your patients are going to get the best care possible as if they’re the only patients we have today.

Leadership and Accountability for a Drug Free Workplace Program

Leadership and Accountability for a Drug Free Workplace Program

The impact of drug abuse on our national workforce is astounding.  Every day, in every city throughout Hampton Roads and the nation, substance abuse costs employers billions.

FACT:  Only about 23% of our Nation’s drug-abusers are sitting around in the abandoned buildings and back alleys of our cities ‘shooting up’ heroin, ‘snorting’ coke, ‘taking a hit’ of grass, or ‘popping’ some meth…’

FACT:  The other 77% of all drug-abusers are EMPLOYED!  (How many are employed by your company?)

Almost everyone has heard of Buzzed Driving, but have you heard about buzzed working? Additional facts, Drug Users:

  • Are 5 times more likely to file workers’ compensation claims than non-drug users.
  • Are involved in 200% to 300% more industrial accidents.
  • Sustain 400% more compensable injuries.

The majority of employers are committed to providing their employees a safe, drug-free work environment.  The weapon of choice is a Drug-Free Workplace program that includes:  written policies, education, employee assistance programs, stiff consequences, and yes, drug testing.  Leadership at your facility must be a fundamental component by enforcing strict and defined policies to guide and to hold all that fail accountable.  Leadership must be engaged to support the clear mission because without it, the program will have no substance.  Believe me, all employees will know.

However, it is imperative employers know and understand the dos and don’ts of drug testing, especially with the new OSHA rule which states you cannot have a blanket policy for post-accident drug testing. That means you cannot test everyone post-accident.  If you do…you will be fined!  In translating the rule it does not prohibit post-accident testing, but it does require that there be a reasonable possibility that drug or alcohol use by the employee was a contributing factor. This does not mean that the employee must appear to be impaired or under the influence after the accident. Instead, it requires that the nature of the accident is such that drug or alcohol use could have been a plausible factor.  OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”  However, an employee who is injured when he inadvertently drives his forklift into another piece of stationary equipment can be drug tested.  This would not be in violation because the employee’s conduct was directly tied to the injury, and drug use can impact conduct.

Do you know your State laws governing drug testing?

The FAQ page regarding the new rule on the federal OSHA website, https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html states, “If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.”  While Virginia does not have a law governing workplace drug testing, other States do and testing required under federal or “other” state regulations, such as Department of Transportation (DOT) post-accident testing, is not impacted by the new rule.

Do have a random testing program; it will deter drug use in the workplace. Another alternative, particularly where drug use is suspected, would be to increase the frequency and scope of random drug testing.  Industry experts agree that random testing is the single-most effective deterrent to workplace drug-abuse.

Do require your supervisors to be properly trained by a Substance Abuse Professional to identify drug and alcohol use. Training would alarm supervisors to identify whether reasonable suspicion exists based upon physical, behavioral, speech and performance indicators of probable alcohol or controlled substance use.

To alleviate time and money, do post in all employment ads that you are a Drug Free Workplace Employer.   It’s a well-known fact that drug users are going to apply for a position at companies who do not have or enforce a drug-free workplace environment. Once again, the word does get around!

Be consistent with your drug testing program.  Don’t pick and choose who you are going test. Follow ALL terms of your company’s written testing policy strictly, fairly, and equally with ALL employees-Do not engage in favoritism, or make exceptions.

As with any change in regulation, we recommend employers consult counsel to determine the proper steps for ensuring compliance with a drug-free workplace program in your state.  You can save valuable time and money by making this a priority sooner than later!

About the Author
Stella McClain is Director of Operation and Third Party Administration for Taylor Made Diagnostics (TMD), a leader in providing occupational medical services and workers’ compensation care for all types of industries. For over 18 years TMD has been both provider and resource specializing in DOT and OSHA regulations as well as clinical testing, wellness programs, physical ability assessments and other critical services. She can be reached at 757-494-1688 or via email: smcclain@tmd.bz.

Fit Testing and Facial Hair

Fit Testing and Facial Hair

While beards and mustaches are very fashionable, they do present a challenge to workers who are required to use a respirator and receive proper fit testing in accordance with OSHA standard as referenced in 1910.134(g)(1) Face piece Seal Protection.  Facial hair can put workers at increased risk because a beard or mustache, if not trimmed properly, can compromise the performance of tight-fitting respirators.  Anything that comes between the face and the respirator’s seal, or gets into the respirator’s valves, can allow contaminated air to leak into the respirator face piece, reducing your worker’s protection.

Higher than expected exposures to a contaminate may occur if users have poor face seals with the respirator, resulting in excess leakage.  No attempt should be made to fit a respirator on an employee who has facial hair which comes between the sealing periphery of the face piece and the face, or if facial hair interferes with normal functioning of the exhalation valve of the respirator.  Employees should be monitored throughout the fit testing process to determine if they can keep a seal during respirator use.

Respirator Usage Written Program

OSHA mandates that all employers requiring respirator usage have a written program. That program should include defining facial hair policies if tight-fitting respirator masks are used. Often, this is enforced only at the time of hire or at annual fit-testing; yet, it is equally important to monitor and remind employees of the policy and its purpose throughout the year. A mustache grown for a social cause is not necessarily a point of concern – as long as it is trimmed and maintained to the point that it does not violate the seal area of the respirator and the length does not interfere with exhalation valves, which prevent inward leakage of hazards during inhalation.

Understand OSHA Guidelines

Whether you are fit testing internally, or using an outside vendor, ensure your written program includes a facial hair policy and that your fit testers clearly understand OSHA guidelines for fit testing.  The OSHA Respiratory Protection Standard addresses the issue of respirator use and facial hair; clearly stating tight-fitting respirators are not permitted to be worn by employees who have facial hair that comes between the sealing surface of the face piece and the face, or that interferes with valve function. Be sure your workers are aware and understand the purpose of the regulation, as it will eliminate delays in the fit testing process, and ensure your workers are fully protected while wearing the respirator at all times.

Lost in Translation

Lost in Translation

The recent increase in non-English speakers continues a trend dating back three decades. Between 1980 and 2010, the number of people speaking a language other than English climbed 158 percent, compared with 38 percent for the overall population 5 and older. Spanish speakers posted the largest numerical gain (25.9 million).  Employment of interpreters and translators is projected to grow 29 percent from 2014 to 2024, much faster than the average for all occupations. Employment growth reflects increasing globalization and a more diverse U.S. population, which is expected to require more interpreters and translators, according to the U.S. Bureau of Labor Statistics.

As a result of an influx of the Spanish speaking population, many doctors are forced to rely on a patchwork of methods for communicating with patients who don’t speak English.  It can become very cumbersome, attempting to obtain important and pertinent information required for treatment.  Some doctors rely on their receptionists, patient’s relatives, co-workers and even supervisors for assistance in translation.

Family members, supervisors and friends cannot be expected to be impartial translators.  They may be emotionally or personally involved with the patient, and this may affect their translation. Using them as interpreters can also cause problems in maintaining the confidentiality of the patient. This also increases the risk of medication errors, wrong procedures, avoidable hospital admissions and other adverse events. These interpreters may also not be well versed in the English or Spanish language themselves.

In a well-known case in the 1980’s, interpreting difficulties resulted in a medical error, leaving a man a quadriplegic. The Spanish word “intoxicado” – which is NOT equivalent to the English word “intoxicated” – was the basis for the medical error. View the published article in the November 19, 2008 issue of Health Affairs at http://healthaffairs.org/blog/2008/11/19/language-culture-and-medical-tragedy-the-case-of-willie-ramirez.

Taylor Made Diagnostics takes the health of your business, and your employees’ health, seriously.  Isa Minner, TMD’s full time team member, speaks fluent Spanish and will assist Spanish-only speaking employees in conveying their medical issues into English. Mrs. Minner is able to assist non-English-speaking employees with completing the health history to ensure the focus of treatment remains on the work-related injury. Specific questions are asked, and information is gathered, to assist the doctors with their assessment and treatment of your employee. Mrs. Minner is present the entire visit to ensure understanding of both sides; the doctor as well as the patient. Proper communication can assist non-English-speaking employees get the right medical treatment and adhere to a medical treatment plan; ultimately, cutting down on claim costs by helping the workers recover faster.

Don’t risk your employees being “Lost in Translation.” For more information on how we can help with your Spanish-only speaking employees contact us today at (757) 494-1688.

Perdido en la Traducción

 El reciente aumento de personas que no hablan inglés continúa una tendencia que empezó hace tres décadas. Entre 1980 y 2010, el número de personas que no hablan inglés en los EE.UU. subió 158 por ciento, en comparación con el 38 por ciento de la población en general de 5 años de edad y mayor. Hispanohablantes registraron el mayor incremento numérico (25,9 millones). El empleo de intérpretes y traductores se prevé que crezca un 29 por ciento entre 2014 hasta 2024, mucho más rápido que el promedio para todas las ocupaciones. El aumento de este tipo de empleo refleja la creciente globalización y una población más diversa, y también se demuestra la necesidad de más intérpretes y traductores, según La Oficina de Estadísticas Laborales de los EE.UU.

Como resultado de la afluencia de la población que solamente habla español o habla español como su lengua materna, muchos médicos están obligados a confiar en un mosaico de métodos para comunicarse con sus pacientes que no hablan inglés o no pueden entender palabras técnicas. Esta situación puede llegar a ser muy engorroso, cuando el medico trata de obtener información importante y pertinente para el tratamiento. Algunos médicos se dependen en sus recepcionistas, los parientes de los pacientes, sus compañeros de trabajo e incluso los supervisores de los trabajadores para ayudar en la traducción.

Miembros de la familia, los amigos y los supervisores no se pueden actuar como traductores imparciales. Pueden ser emocional o personalmente involucrados con el paciente, y las relaciones puede afectar su traducción. Utilizando estás personas como intérpretes también puede causar problemas en el mantenimiento de la confidencialidad del paciente. Esta situación también aumenta el riesgo de errores de medicación, procedimientos erróneos, hospitalizaciones evitables y otros eventos adversos. Es posible que estos intérpretes tampoco están bien versados en inglés o español a sí mismos.

En un caso muy conocido en la década de 1980, las dificultades de interpretación dieron lugar a un error médico, dejando a un hombre tetrapléjico. La palabra española “intoxicado” – que no es equivalente a la palabra inglés “intoxicated” – fue la base para el error médico. Ver el artículo publicado el 19 de noviembre de 2008 en el blog “Health Affairs” ubicado a http://healthaffairs.org/blog/2008/11/19/ language-culture-and-medical-tragedy-the-case-of-willie-ramirez.

Taylor Made Diagnostics toma en serio la salud de su negocio, y la salud de sus empleados. Sra. Isabel Minner, un miembro del equipo de TMD y cubana nativa, habla el español con fluidez y les ayudará a sus empleados hispanos comunicarse de su condición médica en inglés. La Sra. Minner es capaz de ayudar a los empleados que no hablan inglés con la realización de la historia médica para asegurar que el enfoque del tratamiento permanece en la lesión relacionada con el trabajo. Ella tiene más que 20 años de experiencia médica y sabe cómo hacer preguntas específicas y proporcionar información para ayudar a los médicos con su evaluación y el tratamiento de su empleado. La Sra Minner está presente toda la visita para asegurar la comprensión de ambos lados; el médico, así como el paciente. La comunicación apropiada puede ayudar a los empleados que no hablan inglés recibir tratamiento médico adecuado y ayudar a adherirse a un plan de tratamiento médico; y últimamente, la reducción en los costos de reclamación, ayudando a los trabajadores recuperarse más rápido.

No tome el riesgo de que sus empleados estarían “perdidos en la traducción.”