Several times a week, I receive a question about Functional Capacity Evaluation (FCE) under ADA Title 1. This recent question triggered an interesting flow of thought about estimating functional ability.
“If a person gives ‘less than high levels’ of physical effort during a return-to-work functional capacity evaluation, and we’ve discussed effort level during testing, can an estimate of their safe ability to perform the physical demands of the job be made under ADA law?”
My answer is, “Yes. The value of your functional capacity evaluation is based on the information provide contained therein. Given that the evaluation is most likely an ADA Title 1 work product, your ultimate focus should be on the client’s demonstrated or potentially accommodated ability. Yours is not a disability evaluation.”
Here is my thinking:
Return-to-Work Signals Job Attachment and Triggers ADA Title 1 Coverage
The fact that a return-to-work FCE has been ordered signals that the individual is actively job attached, is being considered for job attachment, or is involved in a long-term disability case, which implies a search for a job match. His situation thus triggers coverage under ADA Title 1.
Within the Title 1 code, functional capacity evaluation comes under several sections (see 42 U.S.C. § 12112 (a) (b) and Medical Evaluation at 42 U.S.C. § 12112 (d)). Further, because this test delves into the client’s status as a Qualified Individual, the evaluator and/or the agent who ordered the test must factor reasonable accommodation into the workability decision.
Qualified Individual Defined in ADA Title 1
The term “qualified individual with a disability” means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires (see 42 U.S.C. § 12111 (8)).
My Answer to the Question
To answer your question directly, if an individual does not participate in the evaluation with high levels of physical effort, he has jeopardized his rights under ADA Title 1. (He has opened a can of worms in the areas of his qualified individual status, direct threat, and failure to participate in the interactive process.)
The employer or its agent has the right to offer an effective return-to-work reasonable accommodation solution. When the FCE does not reasonably identify the gap between a client’s ability and the demands of the job, the reasonable accommodation process is compromised.
Thus, the evaluator should make a clear statement about the client’s demonstrated level of effort. Obviously, the evaluator should be prepared to defend the physical effort statement with a list of observations and measurements. Use your clinical experience, a work circuit, and the physical effort “talk” to further inform your level-of-effort opinion.
Don’t equivocate in this statement. And don’t fall back on invalid statements such as, “The client is not able to return to work secondary to the demonstration of self-protective behaviors during testing.” This type of statement is neither supportable nor informative as to his ability to return to work.
An artifact of ADA Title 1 is the guidance given to us in the area of Medical Examinations. The code does not tell us how to evaluate; it establishes a universal baseline of best-practice ideas. ADA Title 1 challenges us to produce functional capacity evaluations that identify the physical demand matches or mismatches with the job in question. If we estimate the boundaries of the job-to-worker mismatch secondary to questionable levels of physical effort, we must do so with clarity and integrity.