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A truck driver, who injured his knee while performing a pre-employment job-function test during the hiring/orientation process, was an employee at the time of his injury for purposes of a workers’ compensation claim, held a Mississippi appellate court. The driver had received a letter from his prospective employer indicating he had been hired, contingent upon his passing a physical, a drug screen and a road test. The road test consists of two phases: (1) the actual driving portion; and (2) a job-function test, which required an applicant physically to enter and exit the rear of a trailer in a specific manner. The driver suffered a knee injury—a torn lateral meniscus—while attempting the second portion of the test, so he failed that portion of the road test. Because he failed the test, his offer of employment was rescinded the following day. He sought workers’ compensation benefits for the injury and the trucking company contended he was not an employee. Quoting Larson’s Workers’ Compensation Law and noting that the issue was whether there was an implied contract of hire at the time of the injury, the court held all three elements—mutual consent, consideration, and right of control—were present. As to the last element, the court noted that the employer controlled all aspects of the test; its fleet manager instructed the driver how to exit/enter the vehicle while performing the test. LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com. See Averitt Express, Inc. v. Collins, 2015 Miss. App. LEXIS 384 (July 21, 2015) [2015 Miss. App. LEXIS 384 (July 21, 2015)]. See generally Larson’s Workers’ Compensation Law, § 26.02 [26.02].
We’ve asked Lori A. Severson, CSP, Vice President, Senior Loss Control Consultant at Lockton Companies, how employers can avoid accidents during pre-employment testing or post-offer employment testing (POET programs). “Overt safety emphasis is the way to success in POET,” explains Severson. “Employers considering pre-employment testing should thoroughly review the process with their legal counsel and safety and HR professionals prior to implementation.” Severson emphasizes that the employer must ensure the testing and simulation of work is conducted accurately and safely. According to Severson, “To achieve this prior to implementation, the employer and the screening company must develop the simulation together. They must always keep safety in mind. The testing also needs to be conducted by the internal and external team literally to confirm safety is built into the model.”
Severson points out that the employer and screening company must understand fully what their applicants might feel and as well as understand what they are expecting their candidates to complete and achieve. “On the day of testing, the candidate(s) must receive very clear communication in pictures and in writing (in their primary language) of the proper steps, sequence and pace,” explains Severson. “Applicants are most likely a bit nervous. They want to perform well to secure the job so they can easily be distracted, not listen well and not understand sequences delivered verbally only. Putting people at ease will be imperative as are offering multiple formats (very simple) instructions to communicate how to navigate safely the simulation testing.” One example would be the entry and exit of a trailer, which requires three points of contact, appropriate footwear and no jumping is allowed.
“The risk we all run in pre-employment screening is the candidate who forgets or bypasses the proper steps and is injured,” says Severson. “From my experience the majority go smoothly and as planned when front end planning of the process is conducted by a multidisciplinary team with the vendor. It takes qualified screeners and safety expectations emphasized clearly to all.”