Each day across America hundreds of worker’s compensation, new hire, return to work, and stay at work medical examinations(2) conducted by medical doctors, occupational therapists, physical therapists, and ergonomic evaluation professionals are not in compliance with federal law. Examples of private attorney, federal court, and EEOC actions against providers are published daily:
A negative return-to-work decision by a physician and therapist lacks suggestions for reasonable accommodation
The functional capacity evaluation of a critical physical demand of an essential function is purposely rigged against an unpopular employee
The therapist conducting a post-offer employment test changes the wording of a test instruction so a lift test becomes an endurance test creates a gender-based disparate impact lawsuit
A functional capacity evaluation system compares one worker’s ability against another worker’s ability rather than against the accommodated demands of the job
Each of these test protocols was based on ignorance of the current rules guiding medical examination under ADA Title I. And each of these cases resulted in considerable settlements against the employer and/or medical professional responsible for the design of the employment test or the execution of the test protocol.
And, simply stated, professional evaluators must be armed with knowledge to challenge POET and FCE system vendors. A vendor’s first priority is to sell equipment and software: the evaluator’s first priority is to practice in compliance with the law.
Course Topics
- Understand when and how a post-offer employment test or functional capacity evaluation is an ADA Title I medical examination
- Review recent federal court challenges to previously accepted test procedures in order to bring your practices up to date
- Learn how to change your documentation so as to reduce the likelihood of EEOC charges or plaintiff attorney demands
- Learn the legal implications of functional capacity evaluation test protocols
developed with a focus on commercialization of testing equipment rather than on
fidelity to 42 U.S.C. § 12112 (d) medical examinations - Become skilled in including recommendations for reasonable accommodation in your evaluation reports
- Understand how and when physical effort tests may not be in compliance with
federal law - Analyze your clinical website for the presence of plaintiff attorney triggers (why advertise non-compliance?)
- Advise employers and case managers on best practices relative to medical history
questionnaires - Appreciate why out-dated methods of job analysis (i.e. the 1978 Uniform Guidelines on
Employee Selection Procedures (UGESP)) are not useful under ADA Title I - Prepare to provide guidance to corporate clients about the need to update
essential function job analysis - Be prepared to respond to a plaintiff attorney or EEOC inquiry about your testing methods
- Use Federal Rule of Evidence 702 as a framework for structuring and defending
your functional capacity evaluation and post-offer test reports
Training Materials
The 10 module FCE & Post-Offer Testing in the Era of ADA Title I training uses a variety of printed and digital media for use by a single student. If you have a team of professionals to train, contact the Reasonable Accommodation staff at 603-358-6633.
(2) Albert E. Gucker v. U.S. Steel Corp., No. 2:13-cv- 00583-NBF, $5,500,000 settlement).
The Wild West days of post-offer employment testing (POET) and functional capacity evaluation (FCE) are gone. Department of Justice enforcement of Title I of the Americans with Disabilities Act make today’s testing protocols a federal civil rights issue. Today requires a skilled “Thinking Evaluator” approach to testing and work ability decision making.
In this one-of-a-kind training Roy Matheson conveys what the thinking evaluator must know and do to be in compliance with practice standards laid down by the federal courts. Recent court sanctions of as much as $5,500,000(1) adds a sense of urgency for each evaluator to reexamine functional capacity evaluation and post-offer testing “systems” that remain stuck in pre-ADA methods.
