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Pre Employment physicals after hire date?
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Pre Employment physicals after hire date?
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I work in manufacturing and trying to draft a formal process for the steps involved with hiring a temporary employee to become a regular employee (they are currently working here). One area where ther
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Forums » Topic Forums » Legal Forum » Pre Employment physicals after hire date?
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Pre Employment physicals after hire date?
posted at 4/15/2010 11:58 AM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
I work in manufacturing and trying to draft a formal process for the steps involved with hiring a temporary employee to become a regular employee (they are currently working here). One area where there is disagreement within the company is when to do the pre-employment physical in relation to the E-Verify employment authorization.
My preferred order of operations is to have the temporary employee take the physical & drug test once we have offered to hire them on from temp status. Once the physical is successfully passed, then we complete the I-9 and e-verify on the first day they formally work for us. The other thought is that we should offer to hire, set up a first day of work to complete the I-9 and e-verify THEN if that is successful send them for a pre-employment physical. This way if they cannot pass e-verify we do not incur needless costs for the physical. This does not seem like the way to do it, but I don't assume I am always right and I was wondering if anyone else had experience with this or has advice on pitfalls assocaited with either. My reasoning is this: if they fail the physical before the official hire date, we can rescind our offer and cancel them through the temp agency. This saves us administative work processing them in and out and protects our unemployment insurance rating since they were never really hired. If they pass the physical but do not pass e-verify, we will have to pay for the physical, but in my opinion would still be more protected from UI since they are not available for work in the US. If we hire, do e-verify and come up with a tentative non-confirmation, there may be 8 government work days that the employee would have the right to work while contesting the TNC. If we wait to do the physical until afterwards we may save money on the physical if the employee does not successfully correct the TNC. We will in these cases however be exposed to W/C and safety risks between the hire date and the physical date. If they pass e-verify, but fail the physical, I think we would have more exposure to a UI claim or wrongful termination for releasing an employee who tested positive for drugs or was not physically able to perform the core job functions. What is your vote? physical first or e-verify first? anything I am overlooking? |
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Pre Employment physicals after hire date?
posted at 4/15/2010 1:12 PM EDT
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
"If they pass e-verify, but fail the physical, I think we would have more exposure to a UI claim or wrongful termination for releasing an employee who tested positive for drugs or was not physically able to perform the core job functions."
There should not be exposure to a UI claim as they are not in conformance with a company policy namely being fit enough to work. If they are not fit how can they work? In fact you might be breaking other rules if you let an unfit person work. No wrongful termination claim should stand for the same reason. How can you wrongfully terminate someone that is not fit to work? Doing drugs is not protected. |
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Pre Employment physicals after hire date?
posted at 4/15/2010 2:52 PM EDT
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Posts: 2146
First: 2/15/2006 Last: 9/14/2011 |
I have a strange question. Do you have a temp agency relationship? Are they doing the I-9 verifications and physicals for these employees while they are temps? Are you not requiring it of them because they are a temp? Are the temps going to be doing the same jobs when they become permanent employees?
I have to wonder if an argument could be made that if it is okay for a temp to have not passed a physical, why it is okay to not hire someone based on the results? Don't you have the same (or more) WC exposure at least with a temp as you do with a permanent employee? Or are they covered under an agency's WC? Could you possibly get into an ADA situation where they could do the job as a temp and then you find out a limitation from the physical and don't hire even though you allowed them the position as a temp with the condition you didn't know about? Personally I would do the I-9 verification first because it doesnt' cost either side anything. Whereas with a physical either the to-be=employee or the employer are out the cost of the physical if this person fails and is not hired because of it. For some reason the whole situation (regardless of order) is raising a red flag for me...my radar is going off...but I've worked an 11 hour day today....so I am too tired to go much farther than asking the questions.... |
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Pre Employment physicals after hire date?
posted at 4/16/2010 5:18 AM EDT
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Posts: 562
First: 11/12/2009 Last: 9/14/2011 |
rrupert has got a great point - if there's no physical involved to be a temp employee yet they can perform the work, what's the point of a pre-temp-to-regular hire physical?
If you are going to refuse employment based on a physical but the person has already been doing the work, seems to me that you might be holding the short end of the litigation stick if anyone ever raises this as an issue. |
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Pre Employment physicals after hire date?
posted at 4/16/2010 7:11 AM EDT
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Posts: 410
First: 1/26/2006 Last: 11/15/2010 |
Hi:
Prudence would mandate that any physical examination be conducted before hiring for a host of reasons. Also, depending on what state the company is in, there may be some significant restrictions against conducting a drug test after hiring an applicant---while there are statutes governing pre-hire testing as well, these tend to be much less restrictive. I trust this is helpful. Dave Arnold, Ph.D., J.D. |
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Pre Employment physicals after hire date?
posted at 4/16/2010 9:39 AM EDT
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Posts: 160
First: 12/5/2002 Last: 4/26/2011 |
thank you for the feedback guys; nice to get a different perspective. The fact that the employee is already working as a temp clouds the issue.
I agree that if these were both done at the agency we would have less concern about the order we conduct these in. We are working to get the agency up to speed on this. The Agency does have separate W/C so the liability changes when we hire them on. The drug test would be the most likely area where a temp would fail the physical. The general physical fitness of the employee is already known through observation, although the lifting evaluation helps us avoid assigning employees to tasks which they are not fit to do. I think the effort to save a few bucks on a physical by doing e-verify first does open us up to legal risks, possibly more expensive than any amount that could be saved. Note that while you can have a prospective employee do the I-9 after the offer, but before the first day of work, E-verify mandates that the screening be done during the employees first 3 days. It is not a selection tool, but rather a verifcation that your selection is authorized to continue. We're gonna go with physical before hire, then e-verify on first day. |
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