Doing functional capacity evaluations has long been a specialty of physical and occupational therapists who are trained in evaluating an individual's capacity to fulfill his or her job responsibilities after healing from an injury or illness.
But precisely because they are licensed health care professionals, PTs and OTs may be caught in a legal bind over their right to do such exams.
Therapists themselves don't think of FCEs as medical tests, but last month a federal appeals court in Oregon ruled that any tests administered by "health care professionals" are "medical" tests. Such examinations are prohibited under the Americans with Disabilities Act (ADA) unless they can show the exam is "job-related and consistent with business necessity."
In this particular case, the court said that the plaintiff, an injured mill worker, may sue Georgia-Pacific Corp. over her FCE, which was conducted by a licensed occupational therapist and included general physical evaluations that indicated not only her functional ability to do specific job skills, but her response to the stressors of doing the tasks.
The OT recommended keeping Kris Indergard off the job. Under its current policy, Georgia-Pacific fired the woman because she had been out of work longer than two years.
Indergard sued.
She had taken a medical leave from her job in 2003 to under go knee surgery for both work-related and non-work-related injuries.
An earlier district court decision had held for the company. But the federal court added another standard: the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations (available at http://www.eeoc.gov/policy/docs/guidance-inquiries.html), to determine the legality of testing. Those guidelines identify seven factors that weigh against the legality of an FCE:
1. whether the test is administered by a health care professional;
2. whether the test is interpreted by a health care professional;
3. whether the test is designed to reveal an impairment of physical or mental health;
4. whether the test is invasive;
5. whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
6. whether the test normally is given in a medical setting; [and]
7. whether medical equipment is used.
The circuit court identified four violations of these particular standards that held in the plaintiff's favor (1, 2, 3, and 5).
In the 2-1 decision, the majority said that the occupational therapist was, indeed, a medical professional, who should have been neither giving nor interpreting the test. Also, "the broad reach of the test was capable of revealing impairments of her physical and mental health, particularly in light of . recording Indergard's subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior," the justices explained.
[The OT] recorded [Indergard's] heart rate and breathing pattern after the treadmill test, and [her] muscle pain and stiffness after the first day of testing. These are measurements of Indergard's physiological response to her performance of a task and, as discussed above, go beyond collecting information necessary to determine whether Indergard was physically capable of performing the task."
This is the first time a federal appeals court has weighed EEOC standards to decide what is and is not a medical exam.
The one dissenting judge rejected the EEOC's Enforcement Guidance as "subvert[ing] the plain text of the statute." [The PCE did not cause the employee to lose her job (i.e., she would have failed the lifting requirements to return to work), she would have no claim anyway.]
The majority interpretation "would have to allow injured workers to return to the job without being able to verify their fitness for duty, creating the potential for re-injury," he told the online magazine Business Insurance.
In an article in its Oct. 5 edition, Clay Creps, chair of the employment law practice group at Bullivant Houser Bailey P.C. in Portland, OR, advised employers to have "a written protocol for return-to-work exams that states the only thing that exam is to explore is whether the injury or illness that caused the person to be out of work has healed to the point that they are now capable of performing the function."
|