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November 1, 2021

Hiring Choices Made Out of Desperation May Lead to Debacles

By: Amy Siegel Oran.

It is hard to pinpoint exactly why it is so difficult to find good employees these days; so many factors have blended to make it seem nearly impossible to find the right candidate. I speak from experience in being on the hiring end of the equation. In fact, every law firm I know is looking for lawyers.  The hard part is saying no to unqualified candidates.  While in my line of work, a failure to succeed would be more on an intellectual level, companies are extending offers to persons not physically capable of performing the essential functions of the job and a failure to succeed is apparent through an on-the-job injury.

When interviewing employees, we are limited in what we can ask, as personal health information is just that: personal.  However, for everyone’s protection, all new employees are subject to the question of whether they are physically capable of completing the essential functions of the job with reasonable accommodations.  That question is often overlooked as cursory; however, in this moment of crisis, it should be anything but.

I had a conversation yesterday on one of my claims, wherein the human resources representative told me she hired an applicant who certified he could manage the heavy physical requirements of the position while having significant legitimate concerns relative to the same.  Her instinct was proven true; within a week of the new employee starting, he claimed an onset of pain due to the strenuous nature of the job he was doing and filed the matter through workers’ compensation.  An open claim now exists for an employee who should have never applied for a position of which he was not capable.  That said, what is a hiring manager to do?

There really are no guarantees.  In hiring, we cannot discriminate against applicants even if our intuition tells us the individual is not the best fit for physical reasons; the law is strict and firm on that.  Unless every prospective hire is subject to a medical examination, one or two who seem like potential risks cannot be sent for an evaluation.  If the employee is clearly told the physical nature and demands of the job upfront and certifies his/her ability to engage in those tasks daily, they must be given the same chance at the job as anyone else of similar qualifications.  Especially now, with such a major paucity of applicants, it is hard to turn away a potential employee when you have numerous positions available and a strong need for staff. 

While the situation described above can happen to any company, there are some practical steps to take to try to avoid it arising. 

  1. Have a written job description that includes not only every task for which the candidate would be responsible, but the physical demands of the same.  For example, this should include how much weight one would need to lift, how many times per day, and from what height.
  2. Verbally discuss the physical challenges of the job during the interview process in detail; ensure your candidate has more than enough information to make an informed decision.
  3. Allow the applicant to shadow an employee in the same position for a brief period to witness exactly what the job entails.
  4. Ensure safety training is provided including safe lifting techniques and other maneuvers to avoid injury; this should be done upon hire and on a regular basis thereafter.
  5. Offer safety equipment such as a back brace to avoid strain.
  6. Begin the employment gradually, not putting the inexperienced worker into a full-time, full duty post immediately; rather, allow a ramp-up so it is more gradual.
  7. Have a co-worker or manager shadow the new employee on his or her first couple of days to watch the way the tasks are completed, monitoring for safety compliance.
  8. Stay in close contact with the new hire to gauge how well they are doing and ensure he or she is truly capable of performing the essential functions of the job.
  9. Use a post-hire, pre-employment medical questionnaire to ensure fitness for the job.
  10. Showcase “How To” videos on the employer’s website of typical on-the-job tasks; confirm that all potential new hires have watched them and can successfully execute such tasks.

 


Amy Siegel Oran is a Partner at Kelley Kronenberg focusing her practice on Workers’ Compensation

Contact Amy Siegel Oran at:
Phone: (800) 718-9865
Email: asiegel@kklaw.com

DISCLAIMER: This article is provided as a courtesy and is intended for the general information of the matters discussed above and should not be relied upon as legal advice. Neither Kelley Kronenberg, nor its individual attorneys or staff, are responsible for errors, omissions and/or typographical errors – always seek competent legal counsel.