b'POST-OFFER EMPLOYMENT TESTINGPOET clinic evaluator. It is important that the employer not attempt to conduct this testing internally as described here:Having employers conduct POET themselves can be problematic for a number of reasons. The first concern is the competency of the employer to conduct the testing. While the employer may set the terms of employment and define the essential duties of the job (subject to human rights considerations), it is best for experts to conduct the testing needed to confirm the employees abilities as it relates to the essential duties of the job, and to flag any accommodations that may assist in achieving this objective. The second concern is objectivity. By engaging an independent third party to conduct POET, the employer can better avoid allegations of impropriety, test manipulation, tampering, bias, etc.Ryan Savage, Partner at Taylor McCaffrey LLPA well-designed POET enables the POET evaluator to make legally defensible conclusions regarding the physical or cognitive capabilities of an individual and whether that conditional employee is a safe fit for the job and capable of performing the essential duties or requirements ofProactive Employee Health and Inclusion Feedback Loop the job. On occasion, the tests may be deferred for a Marnie Courage, 2019variety of reasons either before or during the test. In this case, applicants are provided with a medical clearanceTo evaluate the effectiveness of any POET, avoid document, which must be completed by a physicianmeasuring success on claims costs only (due to before they can return to be retested. Vital signs shouldemployment shifts). Instead, look at the types of injuries be monitored during testing as a safety factor. Failurethat are occurring and consider whether the essential to complete the test due to an adverse clinical sign orduties of the job need to be modified. If such modification symptom must be documented.is warranted, then consequential adjustment to the testing In cases where the offer is withdrawn due to theis required to reflect the new or modified essential duties. conditional employee not meeting the test criteria, the employer must be able to show that the individual was unable to perform essential functions of the position which could not be reasonably accommodated. Carefully designed POET and thoughtful accommodationOne of Manitobas leading labour consideration can allow defendable withdrawing of an offer.Generally speaking, it would be discriminatory toand employment practices.withdraw an offer of employment or to terminate employment because of an individuals/employees inability to perform the duties of the job because of a disability or other protected ground, unless the employer can establish that the standard set by the employer was:1. adopted for a purpose that is rationally connected to the performance of the job;2. adopted in an honest and good faith belief that it was necessary to fulfil that legitimate work-related purpose; and r3. easonably necessary to the accomplishment of the legitimate purpose. This generally requires that the employer establish that the individual/employee was unable to meet the essential duties of the job evenLabour and Employment Practice Groupwith accommodation to the point of undue hardship.Ryan Savage, Partner at Taylor McCaffrey LLP Ryan SavageHaving union representation for employees should notT:204.949.1312be a deterrent for initiating POET at your organization, asE:leg@tmlawyers.comthe Post-offer phase of employment does not necessitate union involvement. Unions are generally interested in2200-201 Portage Avenueprotection and advocacy of members only once hired on. ItWinnipeg, MB R3B 3L3is, however, advisable to include the union in how the POET may be used in the future to develop Fit for Duty testingtmlawyers.comthat could be used to ensure current employees continue to be capable and safe to do the work they are assigned.Fall 2019 HRmatters 19'