The 9 Key Steps to a Defendable Post-Offer: Step 9

April 15, 2015

This is the final step in The 9 Key Steps to a Defendable Post-Offer Blog Series:

Stay in Compliance with the Law

We began this nine part blog series by saying that the cornerstone of an informed hiring program is to ensure that a qualified individual’s physical and cognitive abilities match the demands of the job. We went on to indicate that jobs with high levels of physical exertion, gross whole-body movement, or jobs with a history of injuries were ideally suited for Post-Offer, Pre-Placement Testing (PPT).

We end this series of posts with this discussion: the challenge for the health care or vocational professional involved in post-offer testing is to stay current with the intention of the law and, more importantly, with recent federal court decisions regarding enforcement of the law.

Americans with Disabilities Act ADA logoThe reader may wonder why one would suggest a preference for being current with federal court cases rather than the actual code of the law. The reasoning is simple: the actual law is not dynamic. The law was modified in 2008 and will probably not change for another decade or so. Once a practitioner has invested time and study in becoming familiar with the law, energy and interest should then be turned to the constant interplay of everyday medical and vocational practice as new opportunities for enforcement of the law are created.

The process of staying current with new interpretation and enforcement of the law can be done in a variety of ways. Here are three suggestions:

Participate in a Matheson webinar on the first Thursday of each month. Send an email toinfo@roymatheson.com and request that you be added to the list of people to be notified of the next upcoming webinar. An email reminder is usually sent at the beginning of the week of the webinar.

Visit the “Newsroom” on the Equal Employment Opportunity Commission website at www.eeoc.gov, click on About EEOC and the Newsroom. News about EEOC settlements or pending litigations can be found on that page.

And, as you have already done, stay tuned to developing issues by following our blog at http://blog.roymatheson.com/

Another step one can take to remain current with the law is to maintain contact with your regional ADA National Leadership Network center. Divided into 10 regions, the function of the Network is to foster adoption of ADA-friendly practices by providing resources to individuals and employers. Among those resources are speakers expert in the various titles of the law. Refer to this map to identify your region:

Regional ADA National Leadership Network center

 

 

 

 

 

 

 

 

 

Region I (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont)

New England ADA Center
Institute for Human Centered Design
200 Portland Street
Boston, MA  02114
617-695-0085 voice/tty
adainfo@newenglandada.org
www.newenglandada.org

Region II (New Jersey, New York, Puerto Rico, U.S. Virgin Islands)
Northeast ADA Center
203 Dolgen Hall
Ithaca, NY. 14853
607-255-6686
northeastada@cornell.edu
www.northeastada.org

Region III (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia)
Mid-Atlantic ADA Center
401 North Washington Street, Suite 450
Rockville, MD 20805
301-217-0124
adainfo@transcen.org
www.adainfo.org

Region IV (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee)
Southeast ADA Center
1419 Mayson Street
Atlanta, GA 30324
404-541-9001
adasoutheast@law.syr.edu
www.adasoutheast.org

Region V (Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin)
Great Lakes ADA Center
University of Illinois at Chicago
Institute on Disability & Human Development (MC 728)
1640 West Roosevelt Road, Room 405
Chicago, IL. 60608
(312) 413-1407 V/TTY
info@adagreatlakes.org
www.adagreatlakes.org

Region VI (Arkansas, Louisiana, New Mexico, Oklahoma, Texas)
Southwest ADA Center
at ILRU, a program of TIRR Memorial Hermann
Houston, Texas 77019
713.520.0232
swdbtac@ilru.org
www.swdbtac.org

Region VII (Iowa, Kansas, Missouri, Nebraska)
Great Plains ADA Center
100 Corporate Lake Drive
Columbia, MO 65203
573-882-3600 (V/TTY)
adainfo@missouri.edu
http://www.gpadacenter.org/

Region VIII (Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming)
Rocky Mountain ADA Center
3630 Sinton Road, Suite 103
Colorado Springs, CO 80907
719/444-0268
adainfo@adainformation.org
www.adainformation.org

Region VIIII (Arizona, California, Hawaii, Nevada, the Pacific Basin)
Pacific ADA Center
555 12th Street, Suite 1030
Oakland, CA 94607
510-285-5600 (V/TTY)
adatech@adapacific.org
www.adapacific.org

Region X (Alaska, Idaho, Oregon, Washington)
Northwest ADA Center
Center for Continuing Education in Rehabilitation
University of Washington
6912 220th St SW #105
Mountlake Terrace, WA. 98043
425-248-2480
nwadactr@uw.edu
http://www.nwadacenter.org

And, as always, keep in touch with the Matheson team by contacting us at info@roymatheson.com

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Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating – See more at: http://www.industrialhealth.com/blog/#sthash.pOXSYDGA.dpuf

 

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Amended ADA Smart: The “one person, one job” concept

April 7, 2015

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Amended ADA Smart: The “one person, one job” concept

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Responding to a request for reasonable accommodation flows more smoothly when you keep in mind the concept of “one person, one job.” Thoughts about what other workers will want or how to come up with a unique solution to a complicated request take a back seat to a focus on the person and the job he currently holds.

One Person, One Job

Here is the law supporting the request and a process for responding with the least amount of stress:

The Law

Title 42 – The Public Health and Welfare, Chapter 126 Equal Opportunity for Individual with Disabilities, Subchapter I (Employment) Section 12111. Definitions:

(8) Qualified individual

The term “qualified individual” means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. For the purposes of this subchapter, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.

(9) Reasonable accommodation

The term “reasonable accommodation” may include

(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and

(B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.

The Concept

The concept of “one person, one job” is very straight forward.

First, focus your attention on the worker and his current job. Don’t get ahead of yourself by thinking of alternative jobs. The least expensive and least disruptive accommodation will be found in the current job.

Second, focus deeply on the nature of the request. Have the worker (not the supervisor) fill out the “Request for Reasonable Accommodation” form from the Matheson SEED package. Review the information on the form to see if the worker has identified a solution that fits the company’s resources. If the worker has not been specific, ask questions. Be sure you are clear about the purpose for the accommodation.

If the initial conversation does not identify a solution, involve the worker’s direct supervisor. Do not discuss the disability-related issue prompting the request. In a calm, solution-oriented, three person meeting, guide the worker and the supervisor as they explore potential solutions. At first, do not reject solutions based on cost or inconvenience. Focus on creating a space for each to express ideas. If anger or resistance is present, your job will be harder. Consider the effect of anger on finding a positive solution. You may have to postpone the conversation until the underlying issue is diluted.

If a three-person meeting does not identify a solution begin looking at other available resources. Visit www.askjan.org, contact a local occupational or physical therapist skilled in accommodation, and always keep the worker aware of your efforts.

If your search for an accommodation to the current job is not evident, keep in mind that you do not need to change productivity standards to achieve accommodation.

The value of the “one person, one job” concept becomes evident when the qualified individual is not able to perform the essential functions of his job with accommodation. At this point you are moving away from “one job” to a consideration of another job. It is important at this point to clearly document the fact that the individual is not able to safely or effectively perform the essential functions of the job for which he was qualified. Be sure the person realizes that he has reached this point in the employment cycle. Be clear that consideration of another job means that employment in his previous capacity is coming to an end.

Finally, when the justification behind transferring out of the previous job is documented, begin the process of searching for an available alternative for which the person is qualified.

Roy Matheson Matheson SEED

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The Matheson System for Equitable Employment Determination (SEED) helps disability managers, absence managers, and work evaluation service providers build a tailored “Plan to Not Discriminate” (PND).  A PND reflects your desire to comply with Title I of the Americans with Disabilities Act Amendments Act (ADAAA) by making equitable employment decisions through hiring, retention, and reasonable accommodation best practices.

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Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating – See more at: http://www.industrialhealth.com/blog/#sthash.pOXSYDGA.dpuf
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Finally! Recognition for our innovative program…

March 30, 2015

This past Friday a story was aired on NBC Channel 4 (Washington, D.C.) which detailed the service that Industrial Health provides, Work Hardening, to the Northern Virginia, Washington D.C., and Maryland areas. Industrial Health was created via a partnership between Industrial Rehabilitation Services and Inova. It is very rewarding to have public recognition for the valuable service our company provides to the injured workers in our area. We feel that this is validation for over one year of hard work; establishing ourselves as a critical component to the successful return of injured workers to the workforce through functional, long duration physical rehabilitation. Many thanks to our injured workers who put forth the effort to rehabilitate themselves, despite the inevitable pain and frustration associated with many of these cases. Their success is our success and we hope to continue striving for excellence in our field.

 

Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating

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Exciting Training Opportunity: Building a Content Expert & Consulting Practice

March 27, 2015

Matheson Philosophy on Workplace Safety and Work Injury Evaluation

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Exciting Training Opportunity: Building a Content Expert & Consulting Practice

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Labor law attorneys across the United States are looking for skilled work evaluators to critically2014 Content Expert review reports and test protocols generated by clinicians who perform functional capacity evaluation and post-offer services. The demand for this pre-deposition or pre-cross examination service is being driven by opportunities for negotiated settlements or litigation under the amended Americans with Disabilities Act. This area of activity is predicted to expand for the coming decade.

Roy Matheson’s “Building a Content Expert and Consulting Practice” will prepare you to become the “go to” expert in your region.

Instructors: Roy Matheson, Min Trevor Kyi, Dr. Leonard Matheson & William McClure

  • Separate best practice testing arguments from court accepted evaluation practices
  • Arrange a list of evaluation errors according to legal priority
  • Compose a written pre-deposition analysis of a functional capacity evaluation report and a post-offer testing protocol
  • Explain a battery of evaluation-controlled actions central to recent federal court cases
  • Understand the content expert’s role in the progression of service, complaint, suit, deposition, trial, and resolution
  • Become familiar with a standardized method of analyzing a functional capacity evaluation report and a post-offer testing protocol
  • Prepare a written dissection of a post-offer testing package
  • Recognize and be able to recite each of the evaluator-controlled
  • elements central to recent federal court decisions regarding work evaluations
  • Analyze documents such as a medical history questionnaire against the restrictions of the Americans with Disability Act Amendments Act
  • Prepare an attorney for deposition or cross-exemption of a work evaluation
  • Compose a list of reference materials for the requesting attorney
  • Conduct a pre-deposition or pre-trial meeting with the requesting attorney
  • Perform background credentialing research
  • Clinical protocols are based upon research and a best-practices approach
  • Understand the process of building long-lasting relationships with both plaintiff and defense attorneys

Click Here for More Information and to Register

This course is only for experienced evaluators. You must have taken an in-person Matheson training course within the last 8 years to qualify for this training. Please contact the Matheson office at expert@roymatheson.com if you have questions about your eligibility.

Stay in touch with us on:

 http://blog.roymatheson.com/blog/bid/76767/Exciting-Training-Opportunity-Building-a-Content-Expert-Consulting-Practice
https://www.roymatheson.com/
Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating – See more at: http://www.industrialhealth.com/blog/#sthash.pOXSYDGA.dpuf

 

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Matheson Philosophy on Workplace Safety and Work Injury Evaluation

March 3, 2015

Matheson Philosophy on Workplace Safety and Work Injury Evaluation

Current Articles | RSS Feed RSS Feed

Exciting Training Opportunity: Building a Content Expert & Consulting Practice

Share10

Labor law attorneys across the United States are looking for skilled work evaluators to critically2014 Content Expert review reports and test protocols generated by clinicians who perform functional capacity evaluation and post-offer services. The demand for this pre-deposition or pre-cross examination service is being driven by opportunities for negotiated settlements or litigation under the amended Americans with Disabilities Act. This area of activity is predicted to expand for the coming decade.

Roy Matheson’s “Building a Content Expert and Consulting Practice” will prepare you to become the “go to” expert in your region.

Instructors: Roy Matheson, Min Trevor Kyi, Dr. Leonard Matheson & William McClure

  • Separate best practice testing arguments from court accepted evaluation practices
  • Arrange a list of evaluation errors according to legal priority
  • Compose a written pre-deposition analysis of a functional capacity evaluation report and a post-offer testing protocol
  • Explain a battery of evaluation-controlled actions central to recent federal court cases
  • Understand the content expert’s role in the progression of service, complaint, suit, deposition, trial, and resolution
  • Become familiar with a standardized method of analyzing a functional capacity evaluation report and a post-offer testing protocol
  • Prepare a written dissection of a post-offer testing package
  • Recognize and be able to recite each of the evaluator-controlled
  • elements central to recent federal court decisions regarding work evaluations
  • Analyze documents such as a medical history questionnaire against the restrictions of the Americans with Disability Act Amendments Act
  • Prepare an attorney for deposition or cross-exemption of a work evaluation
  • Compose a list of reference materials for the requesting attorney
  • Conduct a pre-deposition or pre-trial meeting with the requesting attorney
  • Perform background credentialing research
  • Clinical protocols are based upon research and a best-practices approach
  • Understand the process of building long-lasting relationships with both plaintiff and defense attorneys

Click Here for More Information and to Register

This course is only for experienced evaluators. You must have taken an in-person Matheson training course within the last 8 years to qualify for this training. Please contact the Matheson office at expert@roymatheson.com if you have questions about your eligibility.

Stay in touch with us on:

https://www.roymatheson.com/
Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating – See more at: http://www.industrialhealth.com/blog/#sthash.pOXSYDGA.dpuf

 

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The 9 Key Steps to a Defendable Post-Offer: Step 4

February 23, 2015

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This is step 4 in The 9 Key Steps to a Defendable Post-Offer Blog Series:

 

Gain an Understanding of the Latest Thinking on Frequency

This installment of our nine part series looks at frequency of physical demands tested during an employment test.

Challenge One: Think for a moment about performing a functional capacity evaluation or post-offer test on an ADAAA-covered qualified individual. If the job was rated as being at the “sedentary” physical demand level, how would you design your test?

This questions not only the forces involved in such physical demands as lifting but, for the “Thinking Evaluator”, the six other physical demands included in the Department of
describe the imageLabor definition of “strength”. To illustrate the point of considering the frequency of more than just lifting, let’s look at a Court of Appeals case:

EEOC v. E. I. Du Pont De Nemours & Co. (Civil Action No. 03-1605), which culminated in a $1,300,000 jury verdict for the EEOC, revolves around the use of an FCE in a stay-at-work situation.

Careful reading of the available documents reveals that, “The FCE tested her performance of rigorous physical tasks such asclimbing, standing for hours on end, lifting more than 20 pounds, straight leg lifts, and overhead work (emphasis added throughout).”

The documents goes on to state, “Ms. Barrios was required to take the painful functional capacity test which was not related to her job functions and ultimately resulted in her involuntary termination”. The test “rated her as capable of ‘light’ work (more demanding than her sedentary job) but noted “significant instability” while walking heel-to-toe carrying a box of weights back and forth on a 100-foot long line.”

This case is important to the evaluator because the court looked at frequency of walking (two repetitions of 100 feet each) and lifting to 20 pounds. In a standardized protocol emphasizing safety, an occasional lift to 20 pounds would have required multiple lift repetitions at progressively increasing weights.

Lesson One: Reflecting on the Court’s written finding, one sees the necessity to perform an essential function job analysis before performing such a crucial test. (Crucial in that Ms. Barrios livelihood was terminated as a result of the test.) The job analysis must be based not on the Department of Labor’s Physical Demand Characteristics of Work but on the actual metrics of the job (walking 100 feet x 1, lifting 10 pounds from 3 to 30 inches 2 x hour).

Lesson Two: if the main reason for testing Ms. Barrios ability to walk was to judge her ability to evacuate the plant in an emergency (an essential function), why was she tested carrying a heavy box using a heal-to-toe walking style? And why was she tested over a 200 foot distance instead of the required 100 foot distance. The frequency of the walk was 200% higher than required.

Lesson Three: the frequency of standing in this test appears to be of a constant nature. That is, according to the written finding of the court, the individual was tested not a standing for 3 or 4 times per hour but for “standing for hours on end”. How would you defend such a frequency of standing?

Finally, for a look specifically at lifting frequency we turn to Equal Employment Opportunity Commission, Appellee/Cross-Appellant v. Dial Corporation, Appellant/Cross-Appellee in case numbers 05-4183, 05-4311 from November 2006.

Dial involves the effect verbal test instruction can have on the validity of a well written test protocol. Specifically, the job in question required that qualified entry level employees working in the sausage packing area of the plant lift and carry up to 18,000 pounds of sausage per day. The court noted that this requirement included carrying approximately 35 pounds of sausage. The carry was followed by a “lift and load” to heights between 30 and 60 inches above the floor. It was also noted that a day’s cumulative activity included up to four miles of walking while performing the cycle of lift, carry, lift, and load. A job analysis revealed that the job demands included performing 1.25 lifts per minute on average with periods of recovery between lifts.

At issue in this case, among other things, were test instructions that had qualified individuals perform 6 lifts per minute, on average, usually without any breaks, rather than 1.25 per minute. The rate of lifting tested was 400% higher than required of the job.

Lesson Four: the work evaluator is advised is to consider the detail to which the court went to examine the frequency of lifting in a test that denied employment to otherwise qualified individuals. The Thinking Evaluator is cautioned to be prepared to testify as to the reasoning behind the frequency of physical demands tested as well as the forces and postures selected.

The 9 Key Steps to a Defendable Post-Offer:

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Stay in touch with us on:

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Written by Industrial Health, a specialized Workers’ Compensation therapy center which

services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn ,

Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity

Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating ,

Permanent Partial Disability Rating

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Obesity: Nature vs. Nurture

February 13, 2015

Obesity is not simply an American issue according to this article published recently in the United Kingdom.  Indeed, wherever in the world a surplus of food exists, obesity seems to follow.  The question posed by the author is whether or not some people are genetically predisposed to weight-gain due to a more active survival mechanism to conserve energy.  Certainly, it’s a logical argument that in historical times, when food was not as plentiful and/or meals were not regularly eaten, our bodies were programmed to store as much energy (calories), as fat due to the unknown time lapse to the next meal.  That way, these excess calories could be used during lean times where food was not available.  This argument is for “nature.”

The counter argument, “nurture,” can be summed up in the phrase used by the author, “eat less, move more.”  The human body is nothing more than a machine, albeit incredibly complex.  It requires energy, food – which provides calories, to fuel the bodily systems responsible for movement, cognition, and maintenance (cell reproduction).  These actions require specific, stereotyped amounts of energy to perform.  Therefore, higher levels of activity require greater amounts of energy. For example, an office worker sitting at a desk all day uses fewer calories to function than, say, an urban postal carrier who walks all day.  Generally speaking, if these two workers were to intake the same amount of calories on a given day, the office worker would be more likely to gain weight due to the excess calories being stored as fat, because they did not expend the same amount of energy (in the form of movement) as the postal carrier.

Ultimately, both arguments are valid and therefore must be handled concurrently.  Nature has provided a system in which our bodies are capable of functioning during times of food shortages.  However, in this age of food surplus, it takes self restraint on the part of the individual to limit their caloric intake, especially if they know that they are not active.  Calorie-rich foods, such as chocolate, do not need to be totally avoided but moderated.  Surgeries such as gastric bypass and gastric sleeve may be effective in reducing weight, but at a cost.  It may take more effort to control one’s weight through lifestyle modification (healthy eating, exercise), but this option carries less risk and is much less costly to the individual.  Surgeries should always be treated as a ‘last resort.’  So, if you, yourself, are overweight and considering surgery, ask yourself, “Have I really tried to lose this weight on my own.”

 

Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating

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The 9 Key Steps to a Defendable Post-Offer: Step 6

February 12, 2015

This is step 6 in The 9 Key Steps to a Defendable Post-Offer Blog Series:

Document Your Protocol

Post-offer employment tests are twice as likely to be subject to an EEOC settlement or Court of Appeals judgment as stay-at-work or return-to-work functional capacity evaluations. An employment test package, whether post-offer or functional capacity evaluation, contains elements from a variety of clinical practices that may not appear to be germane to an individual test protocol. Clinical standards for safety, rationale of test development, and a job-calibrated essential function job analysis are examples of such information.strengthening po protocol

The Thinking Evaluator can strengthen the defensibility of their practice by addressing these elements within your protocol documentation package, thereby also addressing the issues which are typically the weakest in post-offer test protocols:

  1. lack of definition of the essential functions of the job
  2. inaccurate definition of the physical or cognitive demands of the essential functions
  3. illegal inquiry into personal or family history
  4. misinterpretation of test instructions
  5. lack of appropriate response to a request for an accommodation during testing
  6. failing to secure medical information gained during an employment entrance examination

Lack of definition of the essential functions of the job

Virtually all federal cases involving post-offer testing begin with a reference to the essential functions of the job in question. Why? Because the law mandates that a qualified individual be judged on his or her ability to successfully execute these functions, with or without accommodation.

Lesson: Strengthen your post-offer testing protocol by including in your documentation a clear list of the essential functions of the job. If you are not allowed to perform such a job analysis, add a note to your test documentation about the source of the essential function and job demands data used as the basis for your test.

Inaccurate definition of the physical or cognitive demands of the essential functions

The Thinking Evaluator might wonder how an employment test can lack accurate definition of the physical or cognitive demands of the essential functions of the job. Reflect for a moment on the protocol you have been asked to perform: does it list the actual forces (weight, grip, initial force and sustained force for push/pull), ranges of movement (lift, carry, push, pull, walk), time (sitting, standing, repetition of work cycles), and postural positions of the job?

Lesson: Upgrade your tests. Demand that the protocol you use include a description of the physical and cognitive demands such that you see a clear picture of how job tasks are performed. Document the repetitions, length of exposure to a demand, frequency of exposure, forces, and distances encountered in the job.

Lesson: If performance of a particular demand forms the central question to a return-to-work or stay-at-work evaluation, and if this demand must be performed in a specific manner (i.e., walk 100 feet, heel-to-toe carrying a box weighing 30 pounds, one time per day.) include this information in your test documentation.

Illegal inquiry into personal or family history

The issue of how much, and what type, of private medical information a company or an evaluator can gather is of constant debate. That debate need not occur. As described in other areas of this post, the law is very clear on Congress’ intent to limit the gathering of information to the business necessity of doing so. Here is a snippet of the code regarding information gathering at the post-offer stage of employment:

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

An illustration of this concept can be found in an EEOC news release regarding its suit against the Abatti Group:

The EEOC contends that the Abatti Group and its subsidiaries All Star Seed, Green Touch Fertilizer and Eight Star Commodities required job applicants to undergo illegal physical exams and questions about their medical conditions.  The Abatti Group also made illegal inquiries into applicants’ family medical histories-also known as genetic information-as a condition of employment. 

According to the EEOC, at least one applicant was denied hire as a result.  In 2010, a temporary worker applied for a full-time permanent dispatcher position at the Abatti Group’s El Centro, Calif., location.  The applicant was allegedly informed that he would be considered for hire after taking a physical examination and drug test.  The individual continued to work as a temporary worker in the dispatcher position pending those results. 

Part of the medical examination solicited disability-related information as well as family medical history unrelated to the job, contends the EEOC.  The applicant reluctantly disclosed that he was hospitalized one time due to an issue with his heart, a condition shared by others in his family. Ultimately, he was denied hire because the Abatti Group allegedly regarded him as being disabled even though the one-time hospitalization had no correlation to the work he was already doing.

Such alleged conduct violates the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).  The EEOC filed its suit against the Abatti Group and its subsidiaries in the U.S. District Court for the Central District of California [EEOC v. All Star Seed dba Eight Star Commodities,  Green Touch Fertilizer, and All-star Seed Company; La Valle Sabina, Inc. dba  Eight Star Equipment and Eight Star Logistics; and Abatti dba Abatti Companies; Case No.  CV13-07196 JAK (AJWx)], after first attempting to reach a pre-litigation settlement through its conciliation process.  The EEOC’s suit seeks back pay, compensatory and punitive damages for the applicant as well as injunctive relief intended to prevent further discrimination at the companies.  

“The law on genetic information and family medical history is a new frontier in employment discrimination law,” said Anna Park, regional attorney for the EEOC’s Los Angeles District Office.   “It extends beyond the hiring stage, prohibiting inquiries at any time with only a few minor excep­tions.   Employers need to be cognizant of their legal requirements and be respectful of every applicant’s and employee’s right to privacy.”

Marla Stern-Knowlton, director of the EEOC’s San Diego Local Office, added, “Under federal law, employers are prohibited from making pre-employment inquiries about an applicant’s disability or genetic information.  Unless there is a business necessity for such questions, companies should steer clear of asking broad questions about an applicant’s health.”

Lesson: Be sure your clinical testing policies and documentation include an instruction to work evaluators, and potentially other staff, against asking questions that are (1) not job-related and consistent with business necessity, (2) are likely to cause the revelation of a non-related disability, or (3) probe family medical history.

Misinterpretation of test instructions

The two largest federal court settlements involving post-offer tests focused on the effect test instruction had on an invalid test protocol. (See: EEOC v Dial Corporation and Gillen v Fallon Ambulance Service).

The issue here is for the individual writing the test to get peer review of the written instructions. Have a trained evaluator – with no foreknowledge of the test – explain how to do the test based on nothing but the written documentation. It is important to do this with no verbal cues to the peer.

Lesson: Are the test instructions written in a fashion which supports a safety protocol and a separate work evaluation protocol? In other words, is the test administrator given clear guidance on which safety factors require cessation of testing?

Lesson: Does the test protocol allow the conditional employee to use his or her own innate method of movement or does it “over-instruct” such issues as how to move through awkward spaces or how to lift? If the conditional employee is not allowed to use his or her own style of exertion then the test violates the first commandant of testing: safety.

Lesson: If a test requires a definite cadence such a speed of lifting or speed of reaching, does the written protocol clearly explain that cadence. For example, if the job requires that a lift be performed every 50 seconds, does the protocol exceed that speed? If it does, then the test is invalid. (See: EEOC v Dial for a discussion of test instruction relative to lift frequency).

Example: Looking at a walk test, does the test require 100 feet of walking in a straight line within a certain period of time? If the layout of your clinic requires that the person change direction to achieve a 100 foot walk, does the test protocol adjust for the extra time required to pivot? (See: EEOC v. E.I. Du Pont Nemours & Company (Civil Action No. 03-1605))

Lack of appropriate response to a request for an accommodation during testing

A series of recent settlements have revolved around a request for accommodation during the testing process. Include in your documentation package a clear statement about the need to listen for and to respond to a request for accommodation.

Failing to secure medical information gained during an employment entrance examination

One of the most common misunderstandings about employment testing is the handling of confidential medical information. Here are two sections of the law that address this issue:

(3) Employment entrance examination

A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that

A second section reads:

(2) Preemployment

(A) Prohibited examination or inquiry

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

Lesson: The law if very clear. Only in extreme cases should an evaluator ask questions about an individual or his family in a way that may elicit a report of a disability. The hallmark of an extreme instance warranting such query would be in response to an observation of a safety issue during testing.

Lesson: Review your test package to ensure that training given to test administrators is recorded. When it comes time to defend your clinical practices in a particular post-offer test, this document will form your shield from liability.

The 9 Key Steps to a Defendable Post-Offer:

checked checkbox Understand the Concept of Agency Relationship

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 Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations ( FCE ) , Work Hardening , Work Conditioning , Work Simulation , Impairment Rating , Permanent Partial Disability Rating
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Ergonomic Evaluation: The Struggle to Find a Role Under Title I

February 6, 2015

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Actually titled, “The Struggle to Understand the Role of Ergonomic Evaluation under Title I of the ADAAA”, our webinar tomorrow delves into the conflict between established ergonomic evaluation practices and the employment testing protections of Title I. If you are an ergonomic evaluation professional, practice in the area of post-offer testing, or perform stay-at-work or return-to-work functional capacity evaluations, this webinar will be both thought provoking and immediately useful.

In the interest of giving you a glimpse of the type of discussions we have during our webinars, I am setting up a link to those notes.

docs/Matheson September 2014 Webinar Background Notes.pdf

This event may be sold out by the time you register. If you are unable to join us on Thursday, we will send a notice of where you can obtain the recorded webinar. There is a small fee for the recorded event.

Register for the event at:

https://www1.gotomeeting.com/register/522394544

Stay in touch with us on:

Written by Industrial Health, a specialized Workers’ Compensation therapy center which services Northern Virginia , Sterling , Loudoun , Fairfax , Dulles , Chantilly , Leesburg , Ashburn , Herndon , Reston , Centreville ; and offers programs including Physical Therapy , Functional Capacity Evaluations (FCE) , Work Hardening , Work Conditioning , Impairment Ratings , Permanent Partial Disability Ratings
No Comments | Category Uncategorized | Tags:

Ergonomic Evaluation: The Struggle to Find a Role Under Title I

February 6, 2015

Share2

Actually titled, “The Struggle to Understand the Role of Ergonomic Evaluation under Title I of the ADAAA”, our webinar tomorrow delves into the conflict between established ergonomic evaluation practices and the employment testing protections of Title I. If you are an ergonomic evaluation professional, practice in the area of post-offer testing, or perform stay-at-work or return-to-work functional capacity evaluations, this webinar will be both thought provoking and immediately useful.

In the interest of giving you a glimpse of the type of discussions we have during our webinars, I am setting up a link to those notes.

docs/Matheson September 2014 Webinar Background Notes.pdf

This event may be sold out by the time you register. If you are unable to join us on Thursday, we will send a notice of where you can obtain the recorded webinar. There is a small fee for the recorded event.

Register for the event at:

https://www1.gotomeeting.com/register/522394544

Stay in touch with us on:

No Comments | Category Uncategorized | Tags: