Challenges to Physical Abilities Testing

Today’s Burning Question: We are in the process of validating our annual work performance testing (incumbent testing). It is a physical abilities test we have all personnel complete involving routine job functions while wearing all PPE and SCBA. The members are evaluated and a time is established as a minimum standard. Those who cannot physically meet the minimum are required to get some help. Are there any cases that have attacked such a physical abilities test? 

Answer: When it comes to physical abilities testing, the devil is truly in the details.

There are many many cases involving challenges to performance testing. Many are from non-fire disciplines and I am not sure reviewing the cases individually would be helpful here. The cases fall into two major groups: applicant testing and incumbent testing. The bottom line is that so long as a department does it right there are no problems with either type of tests. If you don't… well… there are three general categories of problems that can arise.

The first category of cases involve challenges to why the testing regimen was/is being implemented. Fire departments that have no physical abilities testing procedure may find that they have a certain applicant or firefighter who they have a concern about. The firefighter or candidate may have a weight issue, an injury, or a disability. Perhaps the individual is female. Maybe they are older and seem to be struggling to perform certain tasks. Someone (or maybe many someones) has/have expressed a concern about the ability of the specific person to perform the job, and the department leadership in responding to the concerns raised, decides to implement a physical abilities testing program. In other words, the program is being implemented as a way to deal with the particular problem with a particular person.

When a fire department implements a testing program with someone in mind, the implementation can be easily be characterized (or mischaracterized) as discrimination or even retaliation. In other words, a firefighter who is (say) recovering from an injury that is taking longer than expected – or perhaps that has a permanent disability – may claim that the implementation of the program was directed at him as a means of getting rid of him/her on account of a disability (real or perceived).

A similar problem can arise when the targeted firefighter has recently complained about being discriminated against. The complaint may be over a perceived disability, sexual harassment, religious discrimination, age, race, etc., or it may be because the firefighter recently raised a safety concern about being asked to do something the member considered to be unsafe. In such a case the firefighter is essentially alleging the new program is being implemented as retaliation for the legitimate complaint that was made.

There is another line of cases challenging the implementation of physical abilities testing that involves collective bargaining. In a collective bargaining environment physical abilities testing for incumbent employees needs to be bargained because it impacts working conditions and "terms and conditions of employment". Failure to bargain for the testing can lead to grievances, unfair labor practices, and lawsuits.

The second category of cases that challenge physical abilities tests focus on whether the department has enough information about the workplace to develop a valid test, and whether the test was a valid test. Generally the performance test should be based upon a thorough job task analysis and evaluate only the person's ability to performs tasks that have been determined to be essential functions. The test needs to be validated by an expert with the credentials to come into court and withstand an attack by attorneys for someone who fails the test. Like our fire department saying – hope for the best but plan for the worst. Make sure you have a squared away expert.

There are also cases that challenge – not the test per se – but rather what is considered to be passing… in terms of the time allowed to complete the test, the weight to be carried/lifted, etc. Again the expert needs to be able to explain why a 16 foot roof ladder was used and not a 14, 200 feet of 1 ¾” hose not 150, 4 minutes was used as a cutoff instead of 4 min. and 5 seconds, etc.

In this second category I would also include challenges that attack the test because it has a disparate impact on a protected classification (race, gender, age, etc.). This again goes to the need for a test to be validated by a credentialed expert, based on a thorough job task analysis, test only essential functions, and be job related and consistent with business necessity.

The third category of cases involves challenges to how the test is actually administered in a given case. A firefighter may allege that an otherwise valid test was applied to them in a discriminatory way. For example, they may claim they are being asked to submit to the test based upon a “perceived” disability, while others who are similarly situated are not. The same argument can be made based on race, gender, religion, age, etc.

The firefighter may complain he/she is being harassed for some reason or another, and the test is simply another example of how the department (or certain officers) are carrying out the harassment. They may complain that they are required to do the test when it is too hot, too cold, too humid, too dry, etc. They may complain that the evaluators have demonstrated a bias against them, and administered the test unfairly. In each of these cases it is vital that the department can document the selection criteria used to send the chosen member for the test (eg. annual test, after a time-loss injury, etc.), and the objective criteria that the evaluators apply to the candidates.

To summarize, this long post, most of the cases that seek to challenge physical abilities tests will fall into one of these three categories of cases. Fire departments seeking to implement or update their physical abilities program need to address the potential concerns that can arise from all three categories of cases.

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.

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