Physical Readiness Testing

  • Written by Smith, Jay, Spottswood, Phillip
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The passage of the Civil Rights Act in 1964, considered a watershed moment in employment law, has long impacted employment practices. As a result of Title VII, early physical stature and physical performance tests were struck down due to a lack of documented job-relatedness.

In this three-part series, the authors will provide an overview of physical testing and its relationship to the job of a law enforcement officer. The mandates of documenting job-relatedness and consistency with business necessity will be analyzed in light of recent decisions. Finally, a plan for career-long physical readiness testing based on validity evidence and supported by strong, defensible policies and procedures, will be proposed.

 

Driven by the Mandate

The mission of a law enforcement agency is dictated by its mandate, and many tasks must be performed in order to fulfill this mandate. Some require certain cognitive abilities or technical skills. Still other tasks require specific physical abilities. In many instances, a combination of these factors is required and those duties must be performed in all types of conditions, sometimes under stressful or life-threatening circumstances.

As such, agencies have a responsibility to ensure that all officers have the minimum level of ability that ensures the safe and effective performance of their job duties. These duties have become increasingly complex and dangerous and place an additional emphasis on the need for a comprehensive physical readiness program to include testing. 

At the state, local and university levels, police departments have had to adopt new doctrine, particularly around active shooter training. This calls for responding officers to rush toward gunfire and step over bodies and bleeding victims, if necessary, to stop the gunman—the active shooter—first. This is a significant departure from the previous “isolate, contain and wait” strategy. This new tactical approach has further emphasized that law enforcement work is inherently unpredictable and potentially violent.

Both the mundane tasks and the emergency responses must be considered when developing and enforcing policies that ensure the physical readiness of its workforce. Therefore, it is suggested all agencies collect and document evidence about the physical domain prior to any employment actions.

 

Validity Evidence

It is critical employers collect and document job analysis data, consistent with the pertinent employment standards. Acceptable methods, conducted in-house or outsourced, may include structured interviews, site visits, ride-alongs, video-based analysis, and written questionnaires. The methods applied, the population sampled, the results, the ensuing analysis, and the subsequent review by subject matter experts should all be documented.

When focusing on the physical demands of the job, the goal is to identify: 1) the essential tasks; 2) the conditions under which they are performed; and 3) the impact fitness has on their performance. Tasks considered essential to the job may be frequently performed (walking, lifting and carrying) or only once in a career (discharging a firearm in the line of duty). In either event, the position was created to ensure the tasks are performed at a minimum level of proficiency. This job data is the foundation of all employment practices.

Physical testing is one practice that requires job analysis data in order to be considered valid and defensible. Tests may measure the performance of actual or simulated job tasks or the abilities that underlie their successful performance. Each type of test has advantages and disadvantages and therefore one may be perceived as more favorable than the other. However, in order to be defensible, both types of tests must be demonstrably job-related and the subsequent standard must be consistent with the safe and effective performance of the essential job tasks.

This validity evidence, which documents the demands of the job and the relationship of the test to the job, informs all career-long human capital decisions: job descriptions, initial and ongoing training requirements, tests for hiring, training and retention, and return to duty as well as disability and retirement decisions.

Job-relatedness is the first prong of defensibility in the event of a challenge. The policies and procedures developed and enforced to ensure a physically ready workforce demonstrate the consistency with business necessity—the second prong of defensibility. The presence or absence of these elements was the focus of recent actions in the courts.

 

Physical Readiness Testing

Physical readiness testing predicts who can begin pre-employment training and who can perform the functions of a law enforcement officer at a minimum level of safety and effectiveness. A physical readiness program, including physical fitness testing, ensures that law enforcement personnel meet and maintain the requisite levels of fitness.

Since being in the job is not the same thing as being able to do the job should the need arise, physical fitness testing helps predict safe and effective job performance of critical and essential functions that are rarely, if ever, required to be performed, but functions that must be performed whenever, wherever at any random given moment. It is important to note that the criticality of an essential function is not based on the frequency of function. It can be once in a lifetime.

To this end, agencies are advised to make career-long physical readiness an essential qualification requirement of employment—selection, training and retention. Career physical readiness must be supported at the department level and required with the appropriate resources, programming, policies and procedures applicable to all sworn personnel. This begins with applicant testing.

 

Applicant Testing

Physical testing conducted by the hiring agency typically takes place very early in the selection process. Pre-conditional offer of employment testing is both allowable and advised, and if conducted properly, presents the first opportunity to demonstrate job-relatedness and consistency with business necessity. Recent decisions underscore this point.

The first case involves applicants for the correction officer position (Easterling v State of Connecticut, Department of Correction

). The DOC conducted physical fitness testing during the selection process and applied norm-based, age- and gender-adjusted values, which corresponded to the 40

th

percentile as offered by the Cooper Institute, as the performance standard.

During the proceedings, the DOC presented no evidence showing the 1.5-mile run to be predictive of who can perform the essential functions of the Corrections Officer position. They had no empirical evidence. The DOC, like many agencies, unilaterally applied the Cooper fitness norms as employment expectations, a practice not supported in the Second Federal Circuit or by Cooper’s.

The second case,

Hollins v Department of the Navy

, involves a supervisory police officer at the U.S. Marine Corps Base, Blount Island, Jacksonville, Fla. A medical condition precluded him from taking the agency’s physical ability test. The officer in this case signed an Information Sheet at the upon hiring stage agreeing to take and pass a physical agility test (PAT) and periodic re-tests, and that failure to do so “will result in termination of employment.” The Merit Systems Protection Board upheld the agency’s removal of the plaintiff from his position.

 

Specific Recommendations

In light of the preceding, a number of the following recommendations are offered. First, identify the essential functions of the job via a professionally conducted job analysis and populate job descriptions with specific, quantified examples of the physical demands of the job, to include career-long requirements of physical fitness as an essential function of the job. Second, e

mpirically document the relationship between the pre-hire physical readiness test and standard to the job in question.

Third, standards that represent the minimum qualifications for the job must be the same for all parties applying for employment. Fourth, require all applicants to sign a formal agreement to participate in and to achieve a minimum passing score on the physical readiness test for the duration of their career.

Fifth, provide applicants with a pre-test clearance form to be signed by a medical professional stating the applicant can safely participate in testing. This document should include a clear description of the tests, how they will be conducted, the safety measures the agency will undertake during testing, and the relationship between each test item and the essential tasks of the position for which the individual is applying.

Sixth, clearly outline the appeal process available to applicants who fail to pass the pre-conditional offer physical test. As fitness is a remediable condition, therefore a re-test of the entire test battery in a pre-determined period of time or during the next testing cycle, subject to prevailing civil service or other requirements is suggested.

Next month, the discussion will be academy testing: initial or pre-entry, during the academy and eligible for graduation.

Jay Smith, M.S., C.S.C.S., is the President and CEO of FitForce, Inc. He may be reached at jay_smith@fitforceinc.com.

JC Phillip Spottswood, J.D.,MPH, is a Medical Policy and Program Specialist with the US Office of Personnel Management, Employee Services, Recruitment and Policy Hiring Office, Washington, D.C.



Published in Law and Order, Oct 2014

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