SOCIETY OF OCCUPATIONAL MEDICINE
GUIDELINES FOR OCCUPATIONAL PHYSICIANS ON THE
DISABILITY DISCRIMINATION ACT 1995
(Continued - Part 4)
In considering the physical and psychological fitness of a person to do a particular job, train for employment or follow a career path, it is essential to understand the demands that will be made of the individual. It is also important to know the tasks which the person must be capable of and what could be disregarded, or modified (see section -Reasonable Adjustment). It is important for the employer to have objective, and where possible quantitative information on the jobs done by their staff. This information will assist in designing safe and efficient jobs. It will facilitate the recruitment process and aid in preparing realistic job descriptions. The personnel specification should contain only criteria which relate to the job. Job requirements can be considered under the following headings (8):
The US Department of Labor has published a semi quantitative assessment of jobs which may be useful when considering the physical demands of work(9). Matching of this with functional capacity assessment provides a means of translating physiological measurements into estimates of work capability.
Standardised methods of job analysis that quantify the physical and psychological demands of jobs are available (10). Qualitative assessment will continue to have a place but the need for objectivity and an evidence based approach remains important.
Job descriptions are often misleading and no potentially contentious decisions about an individuals fitness for work should be made without at least a work place visit. All workplace assessments should be done with the potential for adjustments being taken into account, although the duty of reasonable adjustment itself, is not triggered until an employer knows an applicant is disabled (See Sections - Reasonable Adjustment and Confidentiality and Communicating Advice).
Assessment of Fitness for Work
An occupational physician may be asked to assess the suitability of an applicant for a new job or to review the fitness of an employee to carry out the duties of their current job. The physician has a responsibility to objectively assess the work related effects of any potential or actual disability, but when doing this he or she must seek to minimise resultant occupational disadvantage.
There are two key aspects in determining an individuals suitability or fitness for work. The first is consideration of functional capacity - the ability to carry out the essential tasks, which make up the individuals job.
The second aspect is to consider any risk that may be present to the individual while doing the job or to other people, property or the wider interest of the employer.
In order that a physician may adequately assess an individuals fitness, it is essential to understand the requirements of the persons job. It is only with this knowledge that a decision can be shown to be justified.
At all times the occupational physician must consider the potential for a reasonable adjustment that may overcome a functional difficulty or reduce/avoid risk.
Pre-Employment Health Assessment
Section 5.20 of the Code of Practice indicates that the Act does not prohibit an employer from seeking information about a disability but an employer must not do so in a discriminating way or use the information to discriminate unlawfully against a disabled person.
The assessment of an individuals health or fitness for work prior to employment should be seen as separate from the recruitment process. The offer of a job should be made separately from, but dependent on the outcome of any pre-employment health assessment. Good practice dictates that health information or details of functional impairment is collected by those competent to assess it, for example, by appropriately trained occupational health professionals.
In the particular circumstances of a pre-employment health assessment the primary responsibility of the occupational physician is to the employer but the physician continues to have a duty of care to the job applicant. The physician must however ensure that the assessment is appropriate to the job for which the individual is applying. The responsibility of the occupational physician has already been described in a report of the Faculty of Occupational Medicine (11).
The form of pre-employment health assessment undertaken needs to be tailored to the proposed work and in particular, the tasks that will comprise the applicants new job. It is sensible to set the level of health assessment according to an analysis of the functional requirements and risks of the job. For instance the assessment for an office worker is likely to vary in nature and rigour from that of an airline pilot. Routine medical examinations, with attendant clinical tests, may be justified when the job involves working in hazardous environments, requires high standards of fitness, is required by law or when the safety of others or the public is concerned (11).
Where these standards do not apply it is reasonable to use a simple screening questionnaire to identify potential health problems that are relevant to the employment and require further investigation. It is important that the questionnaire is completed by all prospective employees and not just those perceived to have a health problem. Questionnaires should be tailored to the needs of the job applied for and should assist in decision making. The collection of irrelevant general health information is not good practice. Unless history taking, medical examination and clinical tests are designed to assess factors relevant to the essential elements or hazards of the job, for which an applicant has applied, it may be difficult to justify the assessment. If the pre-employment health assessment is used to match people to jobs for which they are capable, then it is unlikely to be seen as unreasonable to ask individuals with identified impairments or disabilities (if relevant to the job, pension or other work related matters) to undergo additional screening and assessment. Consideration of disabilities that are not relevant to the job may not be justifiable.
The pre-employment process is more likely to be discredited by a failure to consider reasonable adjustment to the work or working arrangements for disabled job applicants (see section - Reasonable Adjustment). Reports advising that an individual is unfit for work, without considering adjustment, may not protect an employer against a charge of unjustifiable discrimination under the Act (see Section - Confidentiality & Communicating Advice).
Section 5.20 of the Code of Practice indicates that a condition which is likely to lead to a job applicant having a much higher rate of absence than is considered acceptable for other employees may be a justification for excluding that applicant (4).
A review of sickness absence may be a legitimate part of a pre-employment health assessment. For example, the Clothier report that followed the case of the childrens nurse Beverley Allitt, who was found to have harmed her patients, took the view that review of sickness absence may be important in helping to identify individuals with personality disorders or psychological problems (12). In fully assessing an individuals capability to do a job, many factors may be taken into account. Performance in previous work may be a useful indication of an individuals ability to perform future work. This may militate for or against an individual with a disability and may be an important clue to their motivation. It would however be unwise to rely solely on sickness absence in determining an individuals fitness. Care must be taken not to unjustifiably discriminate against people who have previously had a disability (for example, the reason for previous sickness absence may relate to a disability the applicant no longer has).
In all aspects of the assessment process the requirements of a disabled person must be considered to ensure that they are not substantially disadvantaged by the assessment itself. The medical assessment is similar to the recruitment process in this respect. All parts of the assessment should be well designed and not in themselves discriminatory by requiring a higher level of skill or capability than would be required by the job. It is important to remember that access to the occupational health department for assessment should not disadvantage any individuals.
Functional Capacity Assessment
In this section, consideration is given mainly to assessment of physical capacity. Psychological capability is often of equal or greater importance but is dealt with separately. (see section - Psychological Assessment). Occupational physicians must base their decisions on functional capacity in relation to the essential tasks of the individuals job. In this respect job descriptions are frequently misleading and there is no substitute for an on site work place assessment or job analysis (see section - Job Requirements). In estimating functional capacity, consideration of previous, recent work experience and recreational activity can be taken into account.
A number of unhelpful practices exist and these should be avoided in the objective assessment of functional capacity. These include:
In many situations assessment may be simple, requiring consideration of a clearly identifiable impairment, which is unlikely to change with time. For example, an individual who has lost an arm in an accident, but who has been fitted with a prosthesis, may be assessed in a work situation to determine their ability to operate a piece of equipment.
In more involved cases, a structured approach to assessment may be required. The Faculty of Occupational Medicines publication, Fitness for Work, contains a framework for assessment (8). Although published before the Act was enacted, the framework remains a useful guide to follow. Even when a structured approach is adopted, problems may arise because of difficulties in obtaining objective data based on measures of functional capacity. The use of physiological measurements such as submaximal exercise tests to estimate work endurance or dynamometers to measure strength may have a place in functional capacity assessment but have limited validity unless the physiological demands of the actual job are known. Examples of good practice do however exist and there is a need for further research in this field.
Although fire fighters are excluded from the provisions of the Act, the development of a work related test of colour vision for the UK Fire Service provides a practical example of functional capacity assessment (13).
Until October 1996 only individuals with normal colour vision were recruited to the fire service. Standards specified that colour vision was to be tested with Ishihara plates and that more than two errors would be a ban to entry. There was no practical work related evidence to substantiate such a standard which might therefore be inappropriate as approximately 8% of men and 0.4% of women are colour deficient. Research commissioned by the Home Office included colour perception in a visual task analysis. Failure to identify colour codes quickly and accurately could be extremely hazardous on the fire ground. Following practical research it was demonstrated that individuals with either normal colour vision or slightly abnormal red - green colour vision (slight deuteranomalous trichromatism) are suitable for appointment to the fire service. A series of screening tests was developed to determine both the severity and type of colour deficiency. Those with protanomaly may confuse the coding of acetylene (maroon) and oxygen (black) cylinders and are therefore unsuitable for firefighting work. (This example does not consider the possibility of adjustment of the work place, to overcome the disadvantage of someone with protanomaly). (The Working Group has cited this as a good example of Functional Capacity Assessment, but recognises that protanomaly is unlikely to be defined as a disability under the Act).
Occupational physicians will inevitably be presented with situations where such an evidence based approach is not yet possible. This should not prevent adequate assessment, provided a logical and reasonable approach is taken. In a controlled environment and with adequate prior training an individual may be tested on a range of tasks required for a job. For example an ambulance person, recovering from injury might attend the training school to undertake and be assessed on his or her ability to perform essential manual handling tasks.
Standardised Methods of Functional Capacity Assessment
The development of standardised methods for determining an individuals functional ability have mainly taken place in the USA where they are also most widely used. They are based on work simulators that allow measurement of work related physiological capacity such as strength, range of movement and work endurance (14,15).
The aim of these techniques is to provide objective unbiased and independent evaluation of an individuals functional capacity. They can be used to determine an individuals physical capabilities for work related tasks such as use of hands, lifting and bending. They may be useful in monitoring an individuals recovery from illness or injury. They do not aim to provide diagnostic analysis of a specific injury or illness.
The assessment methods can help to determine if an individuals performance is a true indication of effort. They have been used successfully in the legal process in the USA, for example in determinations under the Americans with Disabilities Act 1990.
Most of the standardised methods available require specifically trained staff. At the present time it is not realistic to expect occupational physicians within the United Kingdom to have ready access to, or to utilise these techniques. The Working Group does however feel that attention should be drawn to their availability and continuing development. Further details are contained within the bibliography.
Conditions such as multiple sclerosis or rheumatoid arthritis may not affect an individuals capacity to perform work related tasks at the time an assessment is carried out but they might at a later date result in disability. It is likely that such people will be defined as disabled under the Act.
In this situation the individual may be capable at present of working without any limitations or adjustments. The occupational physician may therefore not feel it necessary to advise the employer. In this situation the individual should be advised by the occupational physician of their rights under the Act. The physician should also consider keeping the person under review in order to ensure that the employer can respond appropriately if the situation changes. The form of review needs to be appropriate to the particular circumstances and the risks presented.
Objective assessment of future fitness for work may be difficult (see also sections -Risk Assessment and Differences between recruitment and retention of staff), but Section 5.24 of the Code of Practice does indicate that circumstances may arise where prognosis can be taken into account in determining suitability for a particular job (3). For example, if the job involves a substantial investment in training which may not be justified in the long term, the employer may decide, based on the occupational physicians prognosis, to exclude an individual.
It is important that any decisions are not based simply on the diagnosis. The occupational physician should seek to assist individuals who have conditions which are progressive, in order that they might find employment in jobs which may be appropriate for them as their disease or disability develops. Education and training are important factors in preparing individuals to cope with future disability.
It should be noted that the Act permits employers to discriminate against those with progressive conditions in access to a pension scheme.
Psychological & Cognitive Assessment
Psychological assessment may be undertaken by both managers and occupational health physicians. Psychological factors are a legitimate focus of assessment for managers when considering, for example, recruitment or promotion. In the absence of psychological disorder, variables such as motivation, intelligence or social skills are within the province of management. However, assessment of psychological factors by occupational physicians will come into play if it can be argued that deficits or problems are in the nature of a disability.
Reference to a classificatory system such as ICD-10 may be helpful in defining cut-off points between normal individual variation which is a valid area of enquiry for management and psychological disability which is not. Some of the mental and behavioural disorders included in ICD-10 would however be excluded by the Act e.g. addictions.
Psychological fitness for work can be difficult to evaluate and may present problems to the occupational physician. This was well demonstrated in the Allitt enquiry and subsequent Clothier report, which could only make general, non-specific recommendations for the screening of potential nurses.(12)
Assessment of psychological fitness for work should combine consideration of empirical knowledge about the type of disability with strong emphasis on the expression of the disability in the individual. The latter can be helpfully considered in terms of intellectual, emotional and behavioural functioning.
Psychometric assessment is particularly relevant in the clarification of intellectual functioning. For example, psychometric assessment using standardised tools would be appropriate in conditions such as head injury or subarachnoid haemorrhage.
Subtle and/or variable impairments of psychological function, such as those associated with epilepsy, insulin treated diabetes, or drug treatment, may be disabling but difficult to evaluate. It is often the potential for injury that concerns the occupational physician. Objective means of determining risk are therefore important (see Section - Risk Assessment)
Psychometric assessment can also contribute to the assessment of emotional and behavioural disabilities (for example depression or compulsive behaviour) in a quantifiable manner, although such assessments have limitations and should never form the sole basis for decision-making. In complex cases, consultation with a clinical psychologist is advisable.
Reasonable adjustments for the person with a psychological disability may include systems for personal support and facilitation of personal skills.
Psychological factors may also be taken into account in the assessment of primarily physical disabilities as these can effect the occurrence, severity and recovery from disease. This is well documented with back pain. (16, 17 & 18)
In determining an individuals suitability for employment at the time of recruitment or for continuing employment while in post, occupational physicians often have to perform a risk assessment. This assessment should consider the potential risk to the individual in a particular job and the risk to others who may be affected by the actions of the employee. In risk management terms consideration has to be given to the "total cost" of accidents or untoward events. These include: cost of lost production, damage to reputation, product liability, cost of replacement and training of new staff, effect on insurance premiums and claims management. In the past some occupational physicians have made somewhat arbitrary judgements about risk, based purely on anecdote or diagnosis, without consideration of the particular circumstances of the individual. Another less than ideal practice has been the application of inappropriate standards to differing working environments. For example, extrapolating the medical criteria described in Medical Aspects for Fitness to Drive (19), and applying these standards to differing work machinery or potentially hazardous jobs. The medical standards set for a particular job should be based on the component parts of that job, and its interaction with any existing medical condition or disability.
In the context of disability it is important to accept that there is no such utopia as zero risk. One should consider the concept of acceptable risk, and set a level which is reasonable and practical. This has been carried out in civil aviation where a level of sudden or subtle incapacity of 1% per annum has been derived from target accident rates (20, 21). Initially applied to cardiovascular disease, it has since been extended to diabetes and a number of other conditions(22). Essentially the occupational physician must ask if the disease process will result in an acceptable level of risk and also evaluate whether or not the current employment would exacerbate the clinical condition being assessed.
In the USA, employers have had to deal with the Americans with Disabilities Act 1990. This has generated considerable research to support objective evaluation of risk to health. This is demonstrated in a paper by Johns et al which considers risk factors for recurrence of back pain and matches them with the ergonomic risks of material handling work (23). The occupational physician can then determine fitness for work in terms of an acceptable level of risk for recurrence of back pain. This approach requires a clear understanding of the job requirements in any particular case and appropriate clinical assessment. It also provides an example of an evidence based approach to fitness assessment.
In the UK the British Diabetic Association has attempted to deal with the issue of assessing the suitability of insulin treated people for employment in hazardous occupations (24).
There is a potential conflict for occupational physicians, in considering the suitability for work of an employee or job applicant at increased risk of injury or illness. For example an applicant for a nursing job who has a history of severe atopic eczema and nickel allergy may be considered at increased risk of hand eczema. The physician may have to justify a decision to exclude the applicant from work under the Act. Alternatively if the physician recommends appointment of the applicant, the employer may be at risk of civil litigation for a personal injury claim, should the applicant develop irritant hand eczema. This example emphasises the need for an evidence based approach but the Working Group recognises that uncertainty will remain. Future case law may help resolve these types of issues. An employer who acts on expert advice from an occupational health specialist will be unlikely to be held to be negligent, assuming that the physician has acted according to the generally accepted standards of the profession.
However objective the risk assessment is, there remains a duty to consider reasonable adjustments that may control or eliminate estimated risk.
Effects of Treatment
Conditions such as diabetes and asthma which if untreated would be disabling are covered by the Act. Where treatment effectively controls the disease and prevents disability the provisions of the Act still apply. Individuals may therefore not see themselves as disabled, but the occupational physician has to be aware of the application of the Act if appropriate. The employee may not want to be labelled as disabled and information given to the employer will therefore be limited. The occupational physician should consider the need to keep such people under review in order that future impairments can be identified and adjustments to the workplace reconsidered.
Differences between recruitment and retention of staff.
In theory there should be no differences between the standards of fitness for work, applied to existing staff and potential recruits. However there may in practice be justifiable reasons why these groups could be treated differently.
An experienced electrician who develops a substantial and progressive visual deficit, may be able to continue in his job. The electricians experience may initially compensate for the functional impairment, and later adjustments to his work place or working arrangements may allow him to continue in work. These factors may not apply to someone who wishes to train as an electrician. In this situation the essential training required may be compromised and particular adjustments may not be reasonable.
An employer is likely to be justified in refusing training to an individual whose fitness status is likely to deteriorate to the extent that the benefits of training even with a reasonable adjustment to the job, could not be adequately realised. In addition their lack of experience might put them at higher risk of adverse events. Such individuals particularly if young, may be better served by advice on appropriate career choices which will allow them a greater chance of continuing to work, irrespective of the course of their illness.
In this situation what may constitute reasonable adjustment for one group may not be considered reasonable for the other (see sections -Reasonable Adjustment and Progressive Conditions).
The Disability Discrimination Act, thought by many to be a threat, does in fact offer occupational physicians an opportunity to practice their skills and move fitness assessment forward onto a sound evidence based footing. This should ultimately result in a more objective assessment which will benefit both the employee and the employer.
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