[IPAC-List] Complying With ADA and OSHA on Performance Tests

Shelley Spilberg Shelley.Spilberg at post.ca.gov
Wed Aug 4 12:01:12 EDT 2010

Warren -

First of all, since wearing a respirator is necessary to perform an
essential job function, it would be fair to describe that function to
candidates (along with the other essential functions) and ask them if
they can perform those functions with or without reasonable
accommodation. You can certainly share with them the OSHA medical exam
requirements as well.

As for medical clearance before pre-offer testing, I think it's legal to
ask candidates to take the information about the parameters of the
performance test - including the use of a respirator - to their M.D. for
a clearance regarding their ability to safely perform the test.
However, I think the doctor should limit the focus of the evaluation -
and his report back to the employer - to the candidate's ability to take
the test (with or without reasonable accommodation), NOT the job
function itself. To do otherwise could easily be seen as an unlawful
pre-offer medical exam.

Given our experience working with OSHA on respirator issues (see our
Model Respiratory Policy -
http://lib.post.ca.gov/Publications/respiratory-program2.pdf) - I
suggest you try not to rattle their cage.


Shelley Weiss Spilberg, Ph.D.

CA. Commission on Peace Officer Stnds. & Trng.

1601 Alhambra Boulevard

Sacramento, CA. 95816-7083

(916) 227-4824

-----Original Message-----
From: Warren Bobrow [mailto:warren at allaboutperformance.biz]
Sent: Tuesday, August 03, 2010 1:34 PM
To: IPAC-List at ipacweb.org
Subject: [IPAC-List] Complying With ADA and OSHA on Performance Tests

Hello IPACers,

I have an odd situation and I'm curious to hear how you've dealt with it
in the past.

The job analysis indicates the need for a performance test, part of
which requires the candidate to wear a respirator, as the person would
do on the job during essential job functions. OSHA requirements for a
person to wear a respirator when performing the job functions include a
physical examination (good for one year) to show that the person is
physically able to work while wearing the respirator. Without going
into all of the details, this is a medical exam, not just getting an
note from a doctor that I look OK to do this.

Of course, according to ADA a pre-offer medical examination is illegal.
However, the ADA enforcement guidelines do indicate that asking for
certification from a physician before a person participates in a
physical abilities test is OK.

So, here are my questions:

Given that any candidate would have to pass the respirator physical to
perform essential functions if s/he got hired:

Does having the candidate pass the respirator physical to take the
pre-employment performance test violate the "no pre-employment physical"
portion of ADA?


Does it fall more into the "certification" guidelines in that they are
getting the medical OK to perform a performance test?

Any case law or experiences would be appreciated.



Warren Bobrow, Ph.D.

All About Performance, LLC

(310) 670-4175


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