Pre-Hire, Post-Injury, and Fitness for Duty Testing: The Top 10 Mistakes that Increase Risk

To reduce injuries and control costs from musculoskeletal disorders (MSDs), many employers use physical abilities tests during hiring. However, if not properly designed, these tests can lead to legal challenges and even scrutiny from the Equal Employment Opportunity Commission (EEOC). This session at RIMS 2025, presented by Deborah Lechner, President at EgoScience, highlighted 10 common pitfalls and safer, legally defensible alternatives to protect your organization.

1. Making Premature Medical Inquiries. There are several stages of the hiring process. In stage 1 before you make the offer, you cannot ask about medical information. In stage 2, after you have made the offer, you can technically legally ask about medical conditions, but if you get that information, then retract the offer, you can be accused of using the medical information against the candidate. It is often best to do the testing, but not share results with the candidate at the time of job offer to avoid that risk. In stage 3, you can legally ask medical questions after the offer is made.

2. Not Using the Same Test for All Similar Employees. If you have a test, you want to ensure that all candidates in the same category get the same test and that the pass/fail criteria is consistent for everyone.

3. Not Considering GINA When Seeking Medical Information. According to the Genetic Information Non-Discrimination Act (GINA), medical providers and the employer are prohibited from requesting family information to obtain genetic information. The employer must request that healthcare providers do not collect genetics information during employment-related medical procedures.

4. Omitting Steps in Test Development. Perform a job analysis to gather detailed info about physical requirements related to the job then customize your tests to reflect those requirements. Next, it is important to train the evaluators for consistency because without criteria to follow, clinicians could wing it. After implementation, monitor outcomes and pass/fail rates to understand averages and identify sudden changes to ask questions.

5. Using a Test without Adequate Validation. Test validation has two important components. First, does the test reflect the job demands and is passing criteria consistent with the job? Second, is your test itself accurate and reliable (i.e. create consistent responses) in addition to being valid (i.e. will the test results show that the individual can actually perform what is being tested in real-world situations)? Both of these factors are only proven through research. Confirm this with your testing vendors and clinicians.

6. Using Machine-Based or General Fitness Testing. There are multiple lawsuits that prove most of these machines do not correlate to the actual work, so the validity of these tests typically does not hold up in court.

7. Inconsistent Implementation. Once you start testing, you have to test everyone and only hire those that pass. Use the same test for the same job across multiple locations if the job is constant across those locations.

8. Passing Criteria is Less than the Maximum Requirements. It is illegal to have passing criteria that is higher than the job, but is legal to have it lower than the job. However, lower standards reduces the effectiveness of the test. Simply put: do not dummy down the test to get a larger pool of candidates. This will affect your injury prevention efforts.

9. Requiring Overly Broad Fitness for Duty Examples. You must limit the scope to assess the employee’s ability to work. The test has to be related to a specific medical condition. Avoid far-ranking disability relegation inquiries or unrelated medical examinations.

10. Failing to Document or Validate the Need for the Exam for Existing Employees. A test for an existing worker may be warranted when the employer knows about a particular medical condition, has observed performance problems, and/or reasonably can attribute the problems to that medical condition. The motivation here is to try to avoid potential injury. When you do this, it is essential that each reason for testing is documented clearly and in a detailed manner.