Fix Your FCE and POET Practice: Reduce Your ADA Title I Litigation Profile

Date/Time: Saturday, June 16th, 9:00 a.m. to 4:30 p.m.

Location: 

Hosted by Industrial Rehabilitation & Evaluation Services, LLC

770 West Hampden Avenue, Suite 300

Denver, Colorado

Description: 

Each day across America hundreds of new hire post-offer employment tests, worker’s compensation return-to-work functional capacity evaluations, and work-related physician physicals are conducted. A large number of these work readiness assessments are administered outside of compliance with Title I of the Americans with Disabilities Act. It is imperative that each medical professional who performs functional capacity evaluations or post-offer services is up-to-date with the test administration guidelines emanating from recent Equal Employment Opportunity Commission (EEOC) and federal court settlements. The work evaluation methods of a physician and a therapist were at the heart of a recent $5.5M settlement.

This course takes a “deep dive” into the new world of work evaluation under ADA Title I. Beginning with a clear definition of “medical examination and inquiry” under Title I, we will examine the new guidelines for these tests:

• Functional Capacity Evaluation (FCE) for stay-at-work

• Functional Capacity Evaluation (FCE) for reasonable accommodation determination

• Post-Offer Testing (POET) and Pre-Placement Testing (PPT)

• Return-to-work Functional Capacity Evaluation (FCE) for workers’ compensation

Medical examination topics addressed during this course will include:

• A work product which defines physical abilities in terms of Sedentary, Light, Medium, Heavy, Very Heavy

• A work product which defines physical demands in term of Occasional, Frequently, or Constant

• A work product which states the individual cannot perform the physical demands of the essential functions because of inconsistent effort

• Co-mingling “unsafe for testing” protocols with “unsafe for work” decisions

• Incorrectly defining essential functions as including lifting, carrying, pushing, pulling

• Interchanging important terms such as impairment and disability

• Learning why “qualified individual” is the key phrase in ADA Title I testing

• Performing endurance tests not connected to an essential function of the job

• The ADA Title I workability decision without reference to a job description

• The all-important physical or cognitive job demand link to an essential function

• The cost of ignoring an in-place reasonable accommodation

• The difference between an essential function and a physical or cognitive work demand

• The inadequacy of functional capacity evaluation systems which attempt to “catch” inconsistent effort

• The need to address reasonable accommodation issues during testing

• The power of recognizing qualification standards as the foundation of the workability decision

• The presence of work disability at the nexus of impairment and disability

• The procedures for employment agency new hires

• The work evaluator’s product that does not address reasonable accommodation

• The work evaluator’s workability decision affected by the presence of signs of low effort

• The work product that discusses low effort but does not discuss potential causes

• When coverage under ADA Title I is triggered

• Why using a large patient outcome database is a major error under Title I

• Your defenses to a charge of employment discrimination

Workshop participants are encouraged to bring one or more Functional Capacity Evaluation reports that include a statement about low levels of physical effort (or malingering). These work products will be used to tailor individual consultation and will not be shared with other participants or teaching staff.