Posted on Fri, Jul 30, 2010 @ 01:58 PM
This posting is the third in a string about the August 5th medico-legal webinar that features a review of the Loma Linda University Medical Center settlement with the California State Department of Fair Employment and Housing and ten job applicants.
A response to an earlier post in this string questioned the relationship I see between Functional Capacity Evaluation (FCE) Testing and Post-Offer Pre-Employment Testing (POET). The query wondered how such tests could be similiar if they apply to the status of the client in not only two different phases of employment, but in two different legal systems (state workers' compensation versus the federal EEOC-AADA system). The writer indicated that post-offer seemed to reside in the early stages of employment, while FCE applied to a distant disability phase.
The link between how we practice in post-offer and how we practice in FCE lies in the fact that the individual being tested is (1) a candidate for a position of employment or (2) an incumbent to a position of employment. In Case 1, federal law protects the applicant from discrimination in employment testing. Case 2, even though residing in a state-level workers' compensation atmosphere, is not free from the weight of federal restrictions against discrimination in employment as the client is seen not as an applicant, but as an incumbent.
Both cases rest under the umbrella of federal protection for the client and federal responsibility for both the employer and the evaluator. In both cases, the EEOC administered AADA establishes the guidelines for employment testing.
Recent Federal Appeals Court cases make it clear that EEOC guidance for employment testing covers all applicants and incumbents. In Indergard v. Georgia-Pacific an incumbent wishing to return to her former position as a Napkin Folding Machine Operator challenged an FCE as an ADA covered medical legal evaluation. In James v. Goodyear Tire and Rubber the employer sought the right (affirmed by the court) to have an incumbent banbury operator undergo an FCE to determine his safe ability to fulfill the demands of his job. Indergard started as a workers' compensation case; James was an incumbent ADA case. In both cases the opinion of the court stressed the need for a valid FCE based on tests of the physical demands tied to the essential functions of the specific job to which the client was attached.
The lesson here for functional capacity evaluators is to pay attention to the attributes of each case that comes across the transum.
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Posted on Fri, Jul 23, 2010 @ 05:15 PM
My last post introduced the topic of our August 5th medico-legal webinar (see below to register). I described a settlement between Loma Linda University Medical Center and the California State Department of Fair Employment and Housing in which ten job applicants shared a $259,854 settlement.
The central issue in this case, and the issue driving the reform of Functional Capacity Evaluation and Post-Offer Employment Testing in the United States, is the all-important relationship between the essential functions and physical demands of the target job. Until recently, functional capacity evaluations administered in the workers' compensation arena did not take the time to establish the essential functions at the level required by the AADA. A narrative of the essential functions in a "job description" format served workers' compensation purposes. (The AADA does not mandate a format for an essential function list, but does in fact require a clear description of the essential functions.)
Now practice reform comes to both Post-Offer testing and functional capacity evaluation for return-to-work, same job same employer cases in the necessity to (1) prepare an accurate list of essential and marginal functions and (2) perform a job analysis to establish the physical demands of the essential functions and, finally, (3) the post-offer or functional capacity protocol performed against these demands must be a valid reflection of the demands.
Not building this chain has cost two employers more than $500,000 in the last 7 months.
A review of recent federal court cases provides prima facia evidence in a shift in the level of use and scrutiny of FCE at the federal level.
A brief history:
Indergard v. Georgia-Pacific established functional capacity evaluation as a medical evaluation under the terms of both the ADA and the AADA. The judges spent considerable time probing the Validity of the FCE protocol in question and found it to be invalid in relation to the physical demands of essential functions of the job.
Leger v. Chicago Tribune Company is an ERISA case heard at the federal court of appeals. The court took time to quote directly from an FCE administered by Joseph Rappa, PT. Justices commented on the physical effort statement and the reliability of client reports statement contained in the report. The reader is left with the impression that the court relied on the FCE to a greater extent than on the evidence offered by a physician in the case.
James v. Goodyear Tire and Rubber established the court's opinion that a valid FCE can be requested by an employer when legitimate reasons exist as to a worker's safe ability to perform the demands of his job. The court stressed the need for a valid test protocol.
It should be noted that the Federal Rules of Evidence and the Federal Rules of Civil Procedure govern the submission of Functional Capacity Evaluation reports at the federal level. My personal opinion is that the best level of preparation for this level of work is for the evaluator to be designated as a fully Certified Work Capacity Evaluator (CWCE). Many of today's quickie FCE courses will not prepare a therapist to be an evaluator at the level required in today's changed environment. Further, inflexible protocols and lack of clear essential functions will not serve FCEs done for return-to-work, same job, same employer evaluations.
When I began this blog string I said that it would be about preparing for the August 5th webinar on the LLUMC case. As I wait for documents from the State of California I will respond to a question about the link I see between the practice of post-offer testing and functional capacity evaluation testing.
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Loma Linda Settles Post-Offer Case for $260,000 - August 5, 2010, 2 p.m. EDT (GMT -5)
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Posted on Wed, Feb 24, 2010 @ 01:48 PM
The cornerstone of an informed hiring program is to ensure that an applicant's physical abilities match the demands of the job. For any organization that places applicants in jobs with high levels of physical exertion or dexterity, or jobs with a history of injuries, Post-Offer, Pre-Placement Testing and Job Analysis (PPT) is a crucial step in avoiding injury and its associated costs.
Health professionals who start Post-Offer testing programs often do so because of their background in occupational therapy or physical therapy. They quickly learn that their skill set must expand to include an awareness of EEOC practice guidelines, knowledge of how to write a defendable post-offer test and how to track disparate impact statistics. See: Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002)
Post-Offer testing programs provide clinicians with the opportunity to make direct contact with employers, rather than waiting for referrals from doctors or brokers. The key to launching a successful clinic-based PPT program is to start with a well-established package that includes training, software and support.
Evaluators need to comprehensively analyze jobs to create individualized Essential Function Task statements, and to develop and administer pre-placement testing protocols based on the physical demands associated with the essential functions of each job.
Post-Offer Testing and Job Analysis training >>
Post-Offer Testing and Job Analysis software >>
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