News

IPCS EEO Opinion Letter

IPCS is pleased to announce that its EEO law firm, Kastner, Westman & Wilkins, has completed its review of the IPCS technology as it relates to EEO and ADA matters and has written an updated opinion letter dated July 3, 2017, which can be viewed by clicking on this link: KWW EEO Letter 2017   The past couple of years IPCS has received many inquiries about testing the incumbent workforce. Please note that footnote number 1 on this letter clearly states that the attached letter is specific to new hires (and has application to return to work testing) but does not apply to testing the incumbent workforce.  IPCS plans on addressing incumbent testing later this year.   Please review the letter  and please feel free to share it with your associates. Further, IPCS would like you be aware of the fact that on June 6, 2017, the authors of this letter, attorneys’ John McKenzie and Julie Trout, conducted a webcast on IPCS’ behalf on the legal aspects of setting up a new hire physical capability screening program. Below is a link to that webcast. Please feel free to access it and share it as well.  The webcast is 20 minutes.   https://ipcs.webex.com/ipcs/lsr.php?RCID=c3e3672314c330990113f27d93a6e18e   When you click on the link, click Playback and then allow a short time for the recording to begin since it has to buffer.  Below is the first slide that was accidently left off the recording.    
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Webcast Questions: How to Legally Set Up New Hire Screening Programs

We had a wonderful response to our last webinar and such great questions that came in that were not able to be addressed due to time constraints. So, we've put together a blog post that provides answers to those questions which have been answered by two EEO experts from the law firm of Kastner, Westman and Wilkins, John McKenzie and Julie Trout, who made the webcast presentation. The IPCS Webcast and the following questions and answers are for informational purposes only and not for the purposes of providing legal advice.   Question 1: "Can you elaborate on the 4/5's rule? What efforts does a company need to make in the event the 80% is not achieved? Are they obligated to meet the 80% mark or just have to show that they recognize this and are making efforts achieve. I think the jobs we have are a disproportionate number of males pass vs. females." Answer: According to Uniform Guidelines, a selection rate for any race, sex, or ethnic group that is less than 4/5 (or 80%) of the selection rate for the group with the highest selection rate will generally be considered evidence of adverse impact.  If the 80% is not achieved , use of the selection procedure that has adverse impact is considered discriminatory unless the employer ensures that the procedure has been validated in accordance with the Uniform Guidelines. This does not require that the 80% mark be achieved, but does require the employer to comply with the requirements detailed by the Uniform Guidelines regarding validation studies.   Question 2: Can you elaborate on the validation types you noted in the presentation? What does our process need to be when writing the job description/analysis regarding who should review and how it should be signed off on by the company. Additionally, who and how many company reps should go through the IPCS test prior to initiating testing? Answer: The Uniform Guidelines contain very detailed requirements for the different types of validation studies, which are set forth at 29 C.F.R. § 1607.01 et seq. (an unofficial version of which is available at http://www.gpo.gov/fdsys/pkg/CFR-2016-title29-vol4/xml/CFR-2016-title29-vol4-part1607.xml ). The job analysis process should be thorough, and should include a review of the items discussed during the webcast, including: which job behaviors or outcomes are critical or important; proportion of time spent on respective behaviors; level of difficulty of behaviors; frequency of performance; and consequences of error. The job analysis should include review by those who are most familiar with the job, which may include the employee(s) in the job itself, as well as the supervisor of the position. There are no specific requirements for how to sign off on a job analysis, but it should be reviewed and approved by those who have adequate familiarity with the position, as well as property authority from the employer. The Uniform Guidelines do not contain any requirements that a particular number or type of company representatives go through a selection procedure prior to initiating testing.   Question 3: Validation Study: "I've relied on IPCS to provide support regarding the legal foundation for the testing based on the ratings applicable to our physical demand assessments. Today's webcast seemed to suggest each employer should conduct their own validation study. Does the research IPCS does and the requirement to provide a physical demand assessment eliminate the need for the validation study?" Answer: While the research by IPCS can be used to support a validation study, it does not eliminate the need for a validation study. Generally speaking, a validation study must be specifically tailored to a particular job for a particular employer in order to meet the requirements of the EEOC's Uniform Guidelines on Employee Selection Procedures ("Uniform Guidelines"). In some circumstances, evidence of validity from other studies may be used, but an employer must still comply with the strict requirements of the Uniform Guidelines when documenting the validity of the test for each job for which the test is used.   Question 4: When you institute post offer testing and want to do it for incumbents, could you establish a policy that states something like "we are going to test you but for the first year or two we will only tell you  what areas you need to improve upon", then how can you improve overall performance and safety/fitness of your employee base? Answer: As we explained during the webcast, under the Americans with Disabilities Act ("ADA"), medical testing of current employees may only be done under very limited circumstances. Generally speaking, across the board testing of current employees, even with a policy such as the one described above, would not comply with the ADA's restrictions and would therefore be unlawful. If an employer would like to improve the overall performance, safety, and/or fitness of its employee base, it may implement performance improvement techniques, including performance measurement and ratings systems, safety programs, including safety reporting mechanisms or incentives, as well as voluntary health programs where employees have the choice of whether or not to participate.   Question 5: As long as the policy is consistent to all people you can test your population-yes? Answer: As we explained during the webcast, and as detailed above, generally speaking, across the board medical testing of current employees would not comply with the ADA's restrictions and would therefore be unlawful, even if the policy was consistent for all employees.   Question 6: Please comment on essential duties and safety sensitivity. Answer: When performing a thorough job analysis, employers should identify the various duties of a particular position, and the specifically identify which of those duties are essential for that position. According to the EEOC (see http://www.eeoc.gov/facts/ada17.html ), an employer should consider the following factors in determining whether a particular duty is essential:
  • whether the reason the position exists is to perform that function
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function
If an employer considers a particular position 'safety sensitive,' it should have specific reasons and evidence to support that conclusion, such as an explanation of the potential consequences of unsafe performance of the position.
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Preserve Your Workforce Investment

IPCS-U of C Health System Invite_Page_1IPCS in conjunction with University Of Colorado Health System Presents: Preserve Your Workforce Investment Join us May 16, 2017 from 7:30am-10:00am. Dr. Gilliam will present on topics including:
  • The health status of the workplace
  • Muscle mass as a risk factor
  • How to legally and objectively measure strength
Reserve your seat today by contacting Sandy Kieffer at skieffer@ipcs-inc.com
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First Longitudinal Study to Show a 30% Reduction in Type II Diabetes and Cardiovascular Disease for Those Who Do Strength Training Exercises

Over the years I have been a strong proponent of incorporating muscle strength training into lifestyle activities, not only to prevent osteoporosis, loss of muscle as we age, better joint stability and better overall functionality, but also to reduce the risk of certain diseases such as Type II diabetes and cardiovascular disease. Many refereed publications support the importance of muscle strength training to reduce Type II diabetes and cardiovascular disease. A recent article published in the Medicine & Science in Sports & Exercise in January 20171 takes the research to a new level in that this research tracked 35,754 females ages 47-98 years over 10 years (longitudinally 2000-2014) to measure the effects of strength training on the risk of getting Type II diabetes or cardiovascular disease. The findings show that women who participated in strength training exercises compared to those who did not had a decrease in the rate of developing Type II diabetes by approximately 30% and for developing cardiovascular disease by about 17%. If aerobic physical activity was added to the analysis in addition to strength training, an additional risk reduction was realized. The study looked at various levels of strength training in terms of time (minutes) per week and showed that any level of strength training generated reduction in risk for Type II diabetes and cardiovascular disease. One additional benefit identified in the study was that any level of strength training also led to a lower body mass index (BMI), healthier dietary patterns and lower likelihood of being a smoker. It should be noted that many studies show similar results for man but the MSSE study was the first longitudinal study. Bottom line, with the increase in Type II diabetes and metabolic syndrome (includes cardiovascular risk), changes need to be made to our lifestyle choices if we elect to be healthy. Adding strength training to our weekly activities has so many health benefits besides the reduction in Type II diabetes and cardiovascular disease. Getting involved with strength training exercises does not necessarily mean joining a fitness center. Many strength activities can be done in your own home.   1Shiroma, EJ, et.al. Strength Training and the Risk of Type 2 Diabetes and Cardiovascular Disease. Med. Sci. Sports Exerc., Vol 49, pp.40-46, 2017
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Physically Active Workers Are Healthier as Measured by Lower Medical, Pharmacy and Workers’ Compensation Costs

In an article that appeared in the December 2016 Journal of Occupational and Environmental Medicine authored by Dr. Caretto and others entitled "Association Between Exercise Frequency and Health Care Costs Among Employees at a Large University and Academic Medical Center", the research clearly shows a strong association between the level of physical activity and medical/pharmacy costs. Bottom line is that individuals that complete at least 30-minutes of aerobic exercise 4-5 times per week have the lowest medical and pharmacy costs. They are healthier individuals. Individuals with a Body Mass Index (BMI) of 35 or more had the greatest costs associated with medical and pharmacy claims. However, if an obese person exercises 4-5 times per week, they have lower medical/pharmacy costs compared to other obese individuals within the same obese category. Individuals with Body Mass Indexes less than 30 had the lowest medical and pharmacy costs. Individuals across all Body Mass Index groups who exercised 0-1 time per week had the highest medical/pharmacy costs. Why is this important to know? In a recent blog, I wrote about the first increase in the annual deaths due to heart disease and stroke in 2015 since 1969. The research mentioned above speaks to the issue of obesity as a co-morbidity as well as physical inactivity and the impact of these two factors on increasing the risk for heart disease, cerebrovascular disease, diabetes and hypertension. There is also a strong association with obesity/physical inactivity with risk for injury. Within the research article stated above, the critical factor resulting in higher medical/pharmacy costs and therefore poorer health was physical inactivity. Ironically, as a country, we are moving the wrong direction- more sedentary activity than physical activity. This will only lead to more deaths, healthcare and workers' compensation costs until the time comes when physical activity is put back into our daily routines. It is difficult for industry to provide activity sessions in the workplace. Perhaps the best action that industry can take is to offer incentives built into the employees' health plan to become more physically active. Legally, offer lower deductibles for those who are more physically active as supported by healthier biometric measures including physical strength. IPCS is working with several clients who have done this and they are now realizing significant savings in medical, pharmacy and workers' compensation costs.
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For the First Time Since 1969, Deaths Caused by Heart Disease Have Increased!

Some disturbing news was released by the Centers For Disease Control and Prevention (CDC) and reported in the Wall Street Journal, December 8, 2016, showing that deaths caused by heart disease in the U.S. increased by 0.9% in 2015 and death by stroke increased 3%. This is the first increase since 1969.  These two statistics also resulted in the first time in many years a decrease by one-tenth of a percentage point in life expectancy.   It appears that obesity and diabetes are the two main contributing factors to the increase in death due to heart disease. As we become more automated both at work and at home, the level of physical activity each American has each day diminishes unless a deliberate effort is made to remain physically active.  The largest organ in the body is muscle and muscle is made to work.  Sedentary lifestyles (low levels of physical activity) increases risk for diabetes, obesity and loss of muscular strength.  The heart too is a muscle and it too responds favorably to physical activity.   The IPCS database shows that obesity (as measured by a Body Mass Index – BMI - of 30 or more) over the past 3-years has leveled off at 41% of each year’s pool of new hire applicants. However, the bad news is that the IPCS data shows that the obese are becoming more obese.  Since 2006 through 2015, the percentage of morbid (BMI 40-49.9) and extreme morbid (BMI 50 and more) increased from 4.6% to 7.6% which, statistically, is a 65% increase.   The IPCS data also shows that the new hire applicant from 2006 to 2015 weighs 13 pounds more, has 18% less absolute shoulder strength and 23% less absolute knee strength. This puts the applicant at greater risk for injury and disease.  There is a number of research studies that clearly shows low muscular strength can increase the risk for the Metabolic Syndrome, Diabetes and Cardiovascular Disease.   I have stated this many times - fifty years of research by the American College of Sports Medicine clearly show that physically active individuals are healthier individuals. Maintaining a strong and healthy muscle mass is critical to good health.  The IPCS PCE is a good tool to measure muscular strength as it relates to disease and safety.
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Medical and Pharmacy Costs for New Hire Nurses Following a Physical Strength Evaluation Screening in a Large Health System

"Nurses often encounter situations that require lifting patients, often using awkward body positions. Hiring nurses with strength suitable for these jobs decreases nurses' risk for illness and injury and would be expected to result in more appropriate and lower health care, pharmacy, and disability costs."  To read more from the published article written by Paul Terpeluk, DO, MPH, Bruce Rogen, MD, MPH, and Thomas Gilliam, PhD, please click on the following link. Clev Clinic Research Article
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Looks can be deceiving-especially when it comes to health.

Looks can be deceiving. Look out at your workforce and see if you can actually spot the ones who are stronger, healthier and able to safely perform the essential functions of the job with minimal risk for injury, decreased lost time and fewer workers' comp claims. Chances are that's difficult to do with any degree of accuracy. A person who may look trim and fit may be your unhealthiest worker. A critical measure to the health and well-being of your workforce is the worker's strength to body weight ratio-a new predictor of health and safety. Click below to review Dr. Gilliam's recent webcast that addresses muscular strength and its connection to the safety and well-being of your workforce. Click to view.  
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Pre-employment Testing

Throughout America, employers face multiple challenges to maintaining and growing their companies in the face of a range of demographic and health challenges.  They increasingly recognize they cannot afford to assume physical competence of every applicant, nor acceptance of conventional retirement age to keep their workforce stable in health and physical capability.  Click on the following link to learn how one of our client’s is proactively dealing with these challenges. https://vimeo.com/150221120  
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Incumbent PCE Testing – Can It Be Done?

In the early part of 2015, IPCS asked our EEO law firm, Kastner Westman and Wilkins, LLC (KWW) to research and review court cases that could be used to justify incumbent physical capability evaluations (PCE). We asked our law firm to undertake this task because many of our clients and prospective clients asked if the incumbent worker can be re-evaluated on some fixed time period. Most of the questions focused on the new hire going forward. As the write-up states, every company and each job classification must be reviewed on a case-by-case basis. It does appear that PCE for the incumbent worker can be done as long as job relatedness can be demonstrated and workplace safety is a concern and thereby consistent with business necessity. The document attached below was reviewed and approved by KWW regarding incumbent PCE.   Incumbent Testing Can It Be Done
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