By Chase Feeler, PT, DPT, Director of Functional Testing, WorkSTEPS
The essential functions test (EFT) is a crucial tool for organizations desiring to ensure that candidates and employees stay safe while performing their jobs. How can you, as an employer, be confident in using testing effectively? What are the critical employee rights to consider? How can you ensure that your testing is EEOC- and ADA-compliant?
To answer these questions, our first post in this three-part series will explore a recent industry example: the EEOC v. HHS case. Our second and third posts will address key takeaways for employers and employee rights around testing. Understanding the importance of reasonable accommodation and the potential risks of noncompliance can help keep workers safe while avoiding this type of class action lawsuit and ensuring that your testing practices align with EEOC and ADA regulations.
The EEOC v. HHS Case
In 2022, the EEOC initiated a case on behalf of former employees against Hospital Housekeeping Services (HHS), focusing on EFT administered by the company. EEOC charges were filed by 13 former HHS employees over several years who were terminated after being unable/unwilling to pass/take their EFT because of their injuries or disabilities. The result was a 2024 judgment in favor of the EEOC for $520,000.
Physically demanding, fast-paced HHS jobs, including housekeeper and floor tech positions in hospitals and medical facilities, require all surfaces to be thoroughly cleaned. The EEOC alleged that HHS violated the ADA when it required employees to take the EFT upon hire, annually, and upon return from a medical leave of absence. The test required employees to perform various movements such as bending, lifting, lunging, pushing, and pulling. When employees failed any portion of the test, HHS dismissed them.
The EEOC argued that the EFT inappropriately screened out or tended to screen out individuals with disabilities by making employment decisions based on activities that were not job-related and consistent with business necessity for the employee’s position. Further, these decisions were made without any interactive dialogue with the subject about whether they had a condition that would be considered a disability – a violation of the ADA. This stance underscores the ADA’s crucial role in essential functional testing, as it prohibits employers from discriminating against employees or applicants based on their disabilities. In this case, many of the claimants suffered from qualifying disabilities under the ADA.
HHS and the EEOC had dueling experts on whether the testing accurately measured the employees’ abilities to perform various job duties. The EEOC claimed that HHS had failed to have the EFT validated, provided no justification for the passing standards, had no explanation of how the passing standards were reasonable and consistent with job demands, and offered no documentation of how the passing standards were established. The EFT creator was unfamiliar with the Uniform Guidelines on Employee Selection Process (UGESP) and did not know how to establish the job relatedness or validity of the selection procedure. The EEOC’s expert concluded, “The EFT did not fairly and accurately measure the individual’s actual ability to perform the essential functions of the job since the individuals did, in fact, perform their jobs to the satisfaction of HHS, despite their inability to pass the test.”
In the consent decree, HHS was criticized for not offering reasonable accommodation during the EFT. The company was also barred from terminating an employee for complaining about the EFT and from terminating any employee solely based on failing the EFT. For leave takers returning to work, HHS must now:
- Provide a copy of the EFT on the day the employee returns from leave
- Discuss the EFT with the leave taker before the test begins
- Remind the employee of the ability to request an accommodation while performing the test
- Provide examples of the types of accommodations an employee can request if they fail the initial test
- Allow the leave taker to demonstrate that they can perform the job duties with reasonable accommodations offered
How can you, as an employer, avoid these EFT pain points and test effectively? Click here for our next blog post detailing key takeaways for employers from this case.
Chase Feeler graduated with a Bachelor of Science degree in exercise and sports sciences from Texas State University in 2007. He performed graduate work at University of Texas Medical Branch and received his Master of Physical Therapy in 2009 and his Doctor of Physical Therapy in 2010. Chase worked at a Level 1 trauma hospital for five years post- graduation before joining the WorkSTEPS team in 2015. Chase consults regularly with clinicians across the United States regarding job analysis and employment testing. Chase enjoys music, sports, entertainment, and spending time with his wife and three children.
