The Relevance for Nondiscrimination Compliance

Above, a man simulates part of his job function, which is pulling a box of materials off the ground to working height. The simulation tests his ability to pull up the object using a pulley. If he passes, good. If not, his rehab will target working on lower weights, and slowly increasing to his work requirements.

Two litigated cases, Indergard v Georgia Pacific and James v Goodyear, in concert with the new Americans with Disabilities Amendment Act (ADAAA) are important to study for nondiscrimination in return to work. Functional test results are critical in reaching objective, job-related, and fair work determinations. The concepts described next may be useful for functional evaluators in providing the best testing. The legal cases show relevance for nondiscrimination compliance.

CONCEPTS AND EVALUATIONS

Functional capacity evaluations (FCEs) are comprised of generic work items. All have lifting, carrying, bending, gripping, etc. In order to be proven reliable, the test is standardized and evaluators must perform it in a standardized way. An evidence-based FCE is excellent for objectively measuring abilities of an evaluee when a job has not been identified, when general work capacity data is needed for job search, and when determining objective measurements for a medical impairment rating is required for workers’ compensation and disability. It may not be job specific.

As employers must return workers to a “job,” how specific should the functional test be? If the referral question regards a specific job or jobs, information from an FCE must be either directly related to the job, or close enough so a correlation can be made to job tasks. For example, will a generic “lift test” answer the question, “Can the worker take the 39# battery out of the car and carry it to the workbench?” The closer the relationship between an FCE item and the actual task, the greater the accuracy. Job-specific items should be added when they differ from the standardized format.

Another choice is job-specific testing. When one has developed a job description through evaluating and measuring the job and a related test, content validity for job relatedness is present. When a specific job is the target of the return to work plan, the evaluator should strongly consider a valid job-related test rather than an FCE.

Safety of the evaluee: Medical conditions require monitoring to provide test safety. Medical records must have been reviewed. Preliminary neuromusculoskeletal screenings should identify limitations in motion or strength that could affect testing. Blood pressure and heart rate should be monitored. It is important, however, to only do functional relevant screenings that are related to safe work task performance.

What FCE conclusions should be made? Referrers caution “don’t make placement decisions for me.” The results of functional testing should include what tasks the worker can do safely and how this compares to the job, but the employer should and can determine work status. Job accommodations can be identified when this is part of the referral request and the employer determines if the jobs can or will be accommodated.

What information can the employer receive? They need job ability information for return to work. While workers’ compensation cases at this time are exempt from HIPAA, the history and physical exam and the functional test itself could identify medical issues that go beyond the workers’ comp injury. This medical information would need a full release from the patient.

Employers appreciate “ability to work” test data but may not want medical records. Employers could discriminate against injured employees or be accused of discriminating (see case below) if they know medical issues beyond the workers’ comp injury. Therapists would be prudent to separate the job-related functional information from the medical so that a choice can be made of which records should be released.

LEGAL ISSUES

Indergard v Georgia Pacific: A worker, who was evaluated in a PCE-FCE, was not returned to work and claimed discrimination. The defense stated that the physical capacity evaluation (PCE) was not a medical test. The court has correctly ruled that it was medical. It is unclear why it was not acknowledged as a medical test initially, when a therapist (medical professional) performed a history and a physical exam and monitored vital signs during the PCE.

The case is now allowed to continue and additional discrimination issues arise:

• Issue: medical information in addition to the functional work information was sent to the employer. Questions: Did the worker sign a release for medical information or only the job match information? Why was medical information sent to the employer when the employer was only concerned if the worker could do her job? Could the evaluator separate job ability information from medical information?
• Issue: The court questioned whether the medical information was necessary to gather. Questions: Does the court understand that the history and physical need to be done to ensure SAFETY of the worker to take the test? Clarification of this issue by the therapist would have been helpful. Additionally, did the physical exam go beyond what was necessary for the safety issue by including non-job- related or injury-related measurements?
• A generic PCE with some job simulation components was done instead of a job-specific test. The injured worker claimed that the PCE measured tasks not on the job and was discriminatory because it was not job related and consistent with business necessity (legal terms from ADA). Yes, most generic tests do measure items not found on a job description. Questions: Since the employer only wanted to know if the worker could perform two jobs, why wasn’t a job-specific test performed? Should therapists identify the referral question and provide the appropriate test?
• The therapist and physician said that based on the PCE the person could not do the jobs and should not be placed back into either. Questions: Whose responsibility is it to make the job placement determination? Did the therapist answer a question best left to the employer?
• In disability situations, the ADA Amendment requires the employer to seek accommodations for a job. Questions: Did the therapist or employer seek accommodations? What needs to be in place for the therapist to identify job modification possibilities?

The woman above tests her abilities by pushing on a dynamometer to assess her pushing maximum force.

JAMES V GOODYEAR TIRE & RUBBER CO

In an unpublished decision, the 6th US Circuit Court of Appeals affirmed summary judgment for Goodyear in a former employee’s ADA suit. The worker had a progressive disease. For 10 years, he could perform his job. Then significant job difficulty and safety issues arose and were reported by supervisors and co-workers. He was called in to discuss them. The employer recommended an FCE, but the employee decided to take disability retirement instead. The operator sued under ADA saying that the FCE would have been a discriminatory adverse action. The 6th Circuit ruled for Goodyear. When an evaluation is job related and motivated by reasonable safety concerns, it cannot be an adverse action. In order to identify if the evaluation would have been job related and consistent with business necessity, the court would evaluate the scope of the examination. Because the worker refused to take it, there was no evidence to show it would have been discriminatory.

AMERICANS WITH DISABILITIES AMENDMENT ACT

This amendment went into effect January 1, 2010. It broadens the definition of disability to include people with chronic illnesses that affect life and work. The exact scope is not yet clear, but the intent was to allow more people to fall under the definition so they could receive protection. Behavior change is expected from employers, away from challenging whether a person has a disability and instead focusing on reasonable accommodations. There is an increased opportunity for therapists to identify job modifications in a positive way. With the accommodation, the worker must be able to perform the essential functions of the job, thus not harming an employer’s need for a capable and productive worker.

WHAT CAN WE CONCLUDE?

Objective identification of job demands, development of job-specific tests, and recommendation of job accommodations are helpful to prevent discrimination. These legal aspects provide both opportunity and necessity for therapists:

• Determine whether the functional test used should be a job-specific or generic FCE/PCE type test;
• If job-specific tests are indicated, measure job demands and design a job-specific test;
• For job-specific evaluations, test only to the specifics of the job(s) required;
• For either type of functional test, match the worker’s abilities to the job tasks. Indicate if there is a match or not. Don’t make employment decisions.
• If indicated, make suggestions for accommodation/modification. Employers are the final decision makers. They enter into an “interactive dialogue” with the worker on how they may be accommodated. The functional test is used in this process.

Functional testing by therapists continues to be important in objectively matching workers and their jobs. By understanding the need to choose the correct test and provide nondiscriminatory information, the therapist takes on broader professional responsibility consistent with laws and nondiscriminatory return to work.

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Susan J. Isernhagen, PT, is COO and cofounder of DSI Work Solutions Inc, Duluth, Minn. Isernhagen can be reached at .