|The Americans with Disabilities Act (ADA)
is a landmark civil rights bill designed to prohibit discrimination against individuals
with disabilities by addressing four main areas, one of which is employment. In order to
fully understand the consequences of this portion of the ADA, it is necessary to:
- Define the criteria of what a "disabled"
- Discuss what industry can no longer do.
- Address what industry is required to do in order to
A disability, under the ADA, is a physical or
mental impairment that substantially limits one or more major life activities. "Substantially
limited" is defined as the significant restriction as to the condition, manner,
duration of, or the inability to perform a particular major life activity, when compared
to the general population. A "major life activity" includes such things
as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working." Therefore, a person with a substantially limited
ability to work is considered "disabled" under the ADA.
The classification includes current and potential
employees that are significantly restricted in their ability to perform either a class of
jobs or a broad range of jobs in various classes as, compared to the average person having
comparable training, skills and education.
The provisions of the ADA bar employers from any
line of questioning that would require a potential employee to disclose information that
could determine the nature of, or severity of, a disability unless it is within the
parameters of the specific functional ability necessary to perform essential job-tasks.
The ADA also prohibits pre-employment screening.
The scope of this legislation is comprehensive, and
it is imperative that a business be aware of not only its responsibility, but also of its
financial and legal liability. Although there is no standard established for how a
business is required to comply with the provisions of the ADA, employers can limit their
accountability by addressing these three main areas:
- Functional Job Analysis
- Functional Job Descriptions
- Post-offer/Pre-placement Screening.
Functional Job Analysis (FJA): Under the ADA,
a Functional Job Analysis will have to accurately measure an applicant's ability to
perform the job task and will establish valid criteria that relate to the essential
functions of the job at issue.
The ADA mandates that business obtain objective
documentation that accurately measures and assesses the functional ability necessary for a
person to perform a specific job task. A person does not function in a two-dimensional
environment, therefore this assessment should be three-dimensional. Quantifying
functional capacity should not be restricted by the limitations of the method or
technology of assessment, and the employer should try to avoid the potential liability of
Additionally, the FJA should be done on the job-site
in order to assure data that is objective and valid. Any simulation performed within a
laboratory or clinical environment cannot duplicate factors ranging from psychological
conditions, to outside forces such as weather or clothing, and most importantly, the exact
Under simulation, the criteria established to define
the specific functional ability needed to perform a job task would be unsubstantiated.
Simulated testing might cause an employer to determine a job task as high-risk, but a
potential employee bringing suit against the employer under the specifications of the ADA,
could claim that the testing- data does not apply specifically to the job task, and is
An accurate Functional Job Assessment also provides
the employer with the information required to make an educated decision regarding his
responsibility to provide "reasonable accommodations" and may prevent him from
dedicating funds to modifying jobs that fall within accepted guidelines.
Ariel Performance Analysis System (APAS) technology
guarantees the employer an accurate, objective, three-dimensional Functional Job Analysis
with data and documentation that objectively fulfills ADA requirements.
Functional Job Description (FJD): In order to
comply with the provisions of the ADA, businesses are now required to provide potential
employees with a concise and accurate job description of essential tasks required for the
available position. Employers may address this issue by providing a functional job
description. It should describe the specific job task in functional terms, identify
essential job functions and quantify critical demands made of the employee. Any job
description that tends to discriminate, even unintentionally, may not be used unless the
employer demonstrates that the criteria is job related, and is consistent with business
APAS technology offers industry a method of
procuring a detailed and extensive Functional Job Description. The technology can
objectively and accurately evaluate specific job-tasks and assist in defining functions
necessary for successful job completion, thus assuring an employer valid documentation and
adequate data to protect his position, if it is challenged under the provisions of ADA.
Post-offer/Pre-placement Screening: Because
pre-employment screening is no longer legal, the only opportunity an employer has to
conduct evaluations of prospective employees is after a position has been offered and
before actual placement occurs, provided that the employee is aware that the offer of
employment is contingent upon the results of the evaluations.
A Pre-placement screening must be based upon
the Functional Job Description and Functional Job Analysis of the position
offered. Most importantly, the evaluation must be demonstrably objective, based upon valid
analyses and must accurately and reliably predict an employee's ability to perform
necessary job functions. It is no longer sufficient for an employer to generalize or use
generic classifications relating to physical conditions in order to determine if an
employee is capable of performing a specific job task. Without empirical functional
evidence specified in the Functional Job Description, an employer may be liable under the
provisions of ADA.
Proven objective, accurate, and reliable, APAS
technology is designed to permit the employer to make objective decisions based upon data
that is accepted among the clinical, medical and legal communities. Again, this helps
assure an employer of compliance with the provisions of the ADA including possible legal
The use of APAS technology for ADA compliance offers
an important additional benefit for the employer. After performing all of the analyses
required under the ADA, a video library or archive has been established which can
be used in Worker's Compensation cases for use in pre- and post-injury evaluation and
rehabilitation by providing baseline information on an employee as an aid in evaluating
the extent of an injury, and helping in the prescription of accurate rehabilitation.
In addition, the baseline data may limit symptom
magnification or malingering, by comparing the employee's true pre- and post-injury
functional ability in a completely objective manner which will pick up the inconsistencies
of false data.
Capacity Testing...utilized in the past for
occupational/ vocational recommendations appear to be inappropriate under ADA.
Section 1630.10 states that "It is unlawful for
a covered entity to use qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an, individual with a disability or a class
of individuals with disabilities, on the basis of disability, unless the standard, test or
other selection criteria, as used by the covered entity, is shown to be job-related for
the position in question and is consistent with business necessity."
The interpretation of this regulation section seems
to "rule out" vocational determination being made with many of the back testing
devices presently utilized. Lifting and weight handling in a work environment require the
use of the legs, back, hips, arms, shoulders and hands through set range of motion at a
certain pace. Any device, for example, which measures only back function appears
inconsistent with the language of the law. Take note, selection criteria and tests must be
job related to the position and consistent with business necessity.
Section 1630.11 states "It is unlawful for a
covered entity to fail to select and administer tests concerning employment in the most
effective manner to ensure that, when a test is administered to a job applicant or
employee who has a disability that impairs sensory, manual or speaking skills, the test
results accurately reflect the skills, aptitude, or whatever other factor of the applicant
or employee that the test purports to measure, rather than reflecting the impaired
sensory, manual or speaking skills of such employee or applicant (except where such skills
are the factors that the test purports to measure)."
More than any other factor, make certain your tests
have solid validity and reliability particular to vocational criteria. Medical measures
alone will not suffice while medical examinations themselves do not have to be job-related
and consistent with business (Section 1630.14, #3), if the criteria is used to screen out
an employee with a disability as a result of such an examination or inquiry, the
exclusionary criteria must be job-related and consistent with business necessity, and
performance of the essential job functions cannot be accomplished with reasonable
Conclusion - you cannot use medical testing to
exclude unless the testing can be shown to be job-related and consistent with business
necessity and consideration provided for reasonable accommodation.
Section 1630.9, (a) It is unlawful for a covered
entity not to make reasonable accommodation to the known physical or mental limitations of
an otherwise qualified applicant or employee with a disability, unless such covered entity
can demonstrate that the accommodation would impose an undue hardship on the operation of
its business. (b) It is unlawful for a covered entity to deny employment opportunities to
an otherwise qualified job applicant or employee with a disability based on the need of
such covered entity to make reasonable accommodation to such individual's physical or
'A.@. a result of this area, a much stronger
interface will need to be developed between the medical and vocational communities. The
language and definitive standards of the Dictionary of Occupational Titles will most
likely become the basic format for this mesh.
The era of "expensive, bells and whistles"
testing will be replaced by "norms, validity and reliability." Guidelines will
be replaced by standards. More cost effective measures will be mandated. The
"business as usual" philosophy in the physical testing areas will, by legal
necessity, be modified. Therapists, clinics and hospitals will need to examine protocols
and take long hard looks at their programs, making certain they are defensible under the
ADA. Then, and only then, can they assist employers in implementing procedures that will
comply with the Act.
For more information, the author can be contacted
Birmingham, Alabama 35209
The Centennial Building
90 Bagby Drive, Suite 122
The Rehabilitation and Employment Institute of
Functional Capacity Testing and The
Americans with Disabilities Act: Will You Be Ready?
by Claude F. Peacock
Director, Rehabilitation and Employment Institute
of Alabama, Inc., Birmingham, Alabama
Brace yourself. Buckle up. You are about to enter a
new era - a time where custom and law encounter one another.
The Americans with Disabilities Act (ADA) is
designed to eradicate all forms of prejudice for the disabled in the workplace. Employers
will have to reevaluate their full range of employment practices. Physical therapists will
need to reassess their method of determining capacity to work.
This comment will focus on the changes mandated by
the ADA and the involvement of physical and functional testing. It will also reflect on
the relationship of this testing, and the selection of potentially qualified applicants
for specific occupations.
The ADA prohibits discrimination against disabled
persons by any covered entity which includes employers with 15 or more employees for each
working day in each of 20 or more calendar weeks in the current or preceding calendar
year, and any agent of such person. The ADA is quite broad and applies to every employer,
public or private, that satisfies the minimum criteria.
The law incorporated three distinct definitions of
disability and defines them as: (1) a physical or mental impairment that substantially
limits one or more of the major life activities of such individual; (2) a record of such
an impairment; or (3) being regarded as having such an impairment. Since a tremendous
number of functional capacity tests are performed with the industrially injured, this
information will have to be considered in diagnostic testing and subsequent
Section 3(2) (A) of the ADA requires that the
physical or mental impairment
42impose a substantial limitation on one or more of
the individual's major life activities. Major life activities include caring for one's
self, performing, manual tasks, walking, seeing, hearing, speaking, breathing, learning
and working. These are the same spheres contained in the FCE assessment format. It should
be noted that these same sectors are found in the Social Security Regulations: Rules for
Determining" Disability and Blindness, there referred to as Basic Work Activities in
The term "substantial limitation" is
defined in the proposed regulations as follows: (A) Unable to perform a major life
activity that the average person in the general population can perform; or (B)
Significantly restricted as to the condition, manner or duration under which an individual
can perform a particular major life activity as compared to the condition, manner, or
duration under which the average person in the general population can perform the same
major life activity. With regard to the major life activity of working, an individual is
substantially limited if he or she is "significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and abilities."
Read the above two paragraphs several times. Commit
them to memory. They will lay the foundation for your testing and your reports. The
potential impact on what you perform in your FCE and how you interpret your results will
be substantial to you, your patient and your referral source.
Make particular mental note of (,average
person" and "general population. " The diagnostic testing that one does
will have to be named and validated on the "general population" if the therapist
is to comply with the interpretation of the ADA. The therapist can no longer rely on
obscure test interpretation or the use of "industrial populations." The law
mandates much more specific comparison and as such will require more validity and
reliability with results defined within the ADA criteria.
Essential Job Functions
This is another area that will require your
attention. The interpretation under the ADA means the primary job duties that are
intrinsic to the employment position the individual holds or desires. Many times a
thorough analysis by a trained professional will be required to determine this. Primary
and marginal functions should be identified and designated.
All information developed at this time indicate the
Dictionary of Occupational Titles (DOT) will be the dominant measure for work function.
While the National Institute of Health (NIOSH) guidelines were considered, they do not
appear to have any reference in the literature reviewed basic to the language of the ADA.
If you are currently providing recommendations, reports and testing based on NIOSH
guidelines, I strongly believe you will need to adjust your procedures to the more
definitive measures of the Dictionary of Occupational Titles. Remember, NIOSH has never
set standards, just guidelines. Defense of guidelines under the ADA is considered
difficult, if not impossible.
Functional capacity testing will take on a whole new
standard. Medical devices and equipment which have been continued on page 51
SEPTEMBER 1991, PHYSICAL THERAPY PRODUCTS