ADA & APAS
Americans with Disabilities Act (ADA) and APAS
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:
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 (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 unreliable data.
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 ergonomic environment.
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 therefore invalid.
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 necessity.
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 action.
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.
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 accommodation.
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 mental impairments."
'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.
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 recommendations.
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 Section 404.1521.
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.
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.