A recent appeals court decision affects the practice of functional capacity evaluations (FCEs) in the United States. The ruling in James v. Goodyear Tire and Rubber Company clears the way for employers to request FCEs when legitimate business-necessity concerns, including the safety of an incumbent worker, exist.

The case highlights the need for work evaluators to counsel employers to establish procedures for referral when worker safety and other ADA-related issues are factors.

From 1987 until Sept. 2004, Paul James worked as a tire builder at a tire manufacturing plant owned by Goodyear. The work environment was industrial and very hot, and his position required physical strength and dexterity. In the first five years of his Goodyear tenure, doctors diagnosed James with progressive multiplescilirous MS, but he performed his job without problems for some 10 years.

By the fall of 2003, however, James's MS symptoms had worsened noticeably. However, James insisted that he could still complete his job duties; Goodyear acknowledged that he consistently met performance expectations.

In the summer of 2004, Goodyear management was alerted to concerns about James' safety. James held onto machinery for support when he walked up and down stairs; co-workers helped him perform tasks that required climbing stairs or ladders, and drove James to and from his work station.

A series of meetings ensued that prompted James to retire for medical reasons. Initially, union representatives told James the company would require him to take an FCE to determine whether he could continue in his then-current position (or possibly another position), with or without accommodation. If James failed the FCE, the union counseled, Goodyear would most likely terminate him.

The union advised James that he could retire for medical reasons and receive temporary disability benefits, the only option that guaranteed him continuing income. James did so but later complained of the unlawfulness of this allegedly false choice and of being singled out for testing based on his disability.

The district court granted summary judgment to Goodyear, concluding that James failed to establish that Goodyear's insistence upon an FCE amounted to an adverse employment action, a prerequisite to a successful ADA claim.

The Sixth Circuit Federal Court of Appeals reviewed the case and upheld the summary judgment. The court affirmed an employer's right to request an FCE to establish an incumbent's ability to safely perform the physical demands related to the essential functions of the job in question.

This ruling joins a growing body of case law on the use of FCEs. It adds depth to the "best practice" structure lacking in Workers' Compensation-based FCEs. (See Indergard v. Georgia-Pacific, United States Court of Appeals for the Ninth Circuit, No. 08-35278.)

ADA-related cases such as Indergard and James make clear that, when an FCE is administered to an individual seeking to maintain incumbent employment, or who is returning to the same job with the same employer (RTW SJSE) after a period of absence, a series of best-practice steps must be followed:

• Acknowledge that an FCE is a medical evaluation.

• Perform a job analysis to identify the essential and marginal functions of the job.

• Include in the job analysis specific measurements of the physical demands related to the essential functions of the job.

• Use a job-specific test protocol to address the physical demands linked to the essential functions of the job.

• Document the use of tests conducted to address safety, physical effort and reliability of reports of pain and disability as such and as not being directly related to essential functions.

Additionally, evaluators should counsel employers about the value that a library of alternative positions may bring to the case-resolution process. A recommendation to identify jobs that take advantage of the employee's residual physical and cognitive abilities may lead to a more positive conclusion for the employer and the employee.

A careful review of recent federal court rulings in disability and ADA cases shows a clear trend supporting the use of FCEs when job-specific, objective evidence is required. An earlier case, Leger v. Tribune Company Long Term Disability Benefit Plan (No. 08-1362), reaffirmed the court's position that for a long-term disability plan administrator to "ignore" or "dismiss out of hand" evidence in an FCE would be an "absence of reasoning in the record" and would be, therefore, both arbitrary and capricious.

Roy Matheson is founder and president of Roy Matheson and Associates, Inc. (www.roymatheson.com), a leading provider of training and certification for therapists performing FCEs, post-offer testing and ergonomic evaluation services. He serves on the Board of Directors of the MTM Association for Standards and Research.