And Just Who Should Be Doing a ‘Health Care Professional’s’ Job?
A
hitherto inert definition embedded in the enforcement policy manual of
the Equal Employment Opportunity Commission (EEOC) has me wondering
what in the world the commissioners were thinking when they created the
rule.
The
EEOC enforces the Americans with Disabilities Act (ADA), and in order
to enforce it, the commission often has to clarify parts of the law.
Last week a federal court gave an Oregon woman the right to sue her
employer for violation of the ADA because the employer's contracted
occupational therapist had given the woman a "medical" exam along with
her functional capacity evaluation.
In
other words, the OT had tested the physiological responses (blood
pressure, heart rate, etc.) to the lifting task the woman was
attempting to do, as well as the degree of muscle and joint stiffness
she felt the next day. Based on the 2-day exam, the therapist
recommended that the woman not return to that particular job.
The
company used this as a legal reason to fire the employee. She had been
out of work beyond the period of time their policy allowed.
You can read the whole story of the court ruling at www.advanceweb.com/ot.
But it's not the case particulars that bother me. It's how the EEOC
defined who the OT was and what she should or should not be doing.
The
OT definitely overstepped the bounds of what such testing is to cover,
if she did what they describe. The law is clear that functional
capacity tests must relate specifically to the job requirements and
cannot extend to the individual's physical or psychological response to
the effort. And that rule is recited in the EEOC's document Enforcement
Guidance: Disability-related Inquiries and Medical Examinations of
Employees Under the Americans with Disabilities Act (ADA).
But
even if she hadn't done those things - even if she had tested only what
she should have - the OT could still have been considered guilty of
giving a "medical exam" just because she's an OT. EEOC "guidance" says
that if the test is administered by a "health care professional," it
should be considered a medical test.
Now,
maybe there is in the law somewhere a list of practitioners who qualify
as "health care professionals," but I can't find one. Even the EEOC
does not define the term. But the court did. And OTs and PTs were part
of it.
Well, yeah. They are
health care professionals. But they are precisely the health care
professionals trained to administer FCEs! Who does the court want to
perform them - people off the street?
And among the examinations that are considered "medical" are "range-of-motion tests that measure muscle strength and motor function..."
That seems to indicate that whoever tests these things is to watch, only, and just nod or shake their heads.
Yep,
right. Anyone off the street could do that. And what would it prove?
That the employee performed that task, perhaps staggering and huffing,
but hey, he did it.
The
controverted principle here is that employers are not to look for
indicators that might or might not have any real impact on job
performance. People with high blood pressure are working right now at
just about every workplace in America. The risk it represents is
considered their risk, not the employers'.
But as the cost of health care rises, employers are going to consider it their risk. And many of them will want to know these things in advance. That is distinctly against the law - now.
This
is reportedly the first ADA case in which the courts have used the EEOC
guidelines to determine their definitions. If I were a judge, I'd have
questioned whether the guidelines made sense before hanging my hat on
them. One dissenting judge did just that and warned his colleagues that
the precedent they set in the Kris Indergard-Georgia Pacific case could leave employers with no real way to control their quality or their costs.
Or ours. People do have the right to work, but only to the satisfaction of the person who signs the paycheck.
You can see the EEOC guidelines at http://www.eeoc.gov/policy/docs/guidance-inquiries.html#4. They were adopted July 27, 2000.
We'll see what happens when the case goes to court.