This is an old post but a lot has happened in the federal courts since the article was published.

First, the title of the article, as I recall was something like "EEOC says no OT or PT in FCE". If that was the title it was completely inaccurate and a disservice to all OT's and PT's who practice in the U.S. Period.

Second, as I have writen many other places, we all need to read the actual court cases and not rely on industry publications.

Third, believe it or not, EEOC does not have the final say in this type of case. That is why it was being heard in the 9th District Court of Appeals. EEOC is a federal agency that is in charge of administering a series of anti-discrimination laws. They have the power to fine people but we all have the right to appeal their findings and fines to the federal court system. (EEOC can be scary and should be paid attention to but they are not the final arbitrator in these situations).

There is a lot of activity in at the federal level about both FCE and Post-Offer testing. A recent case in Knoxville affirmed the use of an FCE by an employer (Goodyear Tire and Rubber) who wanted to test an individual for the ability to safely perform his job duties. A case in Illinois affirmed the importance of physical effort and reliaiblity of client reports evidence gained from an FCE in a long-term disability case (evidence taken over a physician's opinion).

Stay abreast of what is happening by reading the court cases. Or tune into our monthly court case review. But be very careful when reading second- or third-hand articles written by people who either have a dog in fight or who don't have a clue.

I think the key factors here are that it sounds like one of the two knees (or perhaps a second injury) was not a work related injury, and that the employee was fired as a result of the test-but from the article, I don't know what criteria were not met.  With the mentioning of heart rate and "breathing patterns" they may have fired her because of poor cardiovascular status.  I think we would all observe that rather than termination, the employer would have been better off (and "more" legal) to facilitate "treatment" for this and re-testing if required.  The ADA does define an FCE as a medical test-using a medical device (grip dynamometer), but I hope we all agree that job suitability testing should always be done post-offer.

I think this is the first time the EEOC standards have been used; "This is the first time a federal appeals court has weighed EEOC standards to decide what is and is not a medical exam" but not sure how this impacts us when there are not other mitigating circumstances. 

Another key point from the ADA;

"At the third stage (after employment begins), an employer may make disability related inquirings and require medical examinations (FCE) only if they are job-related and consistent with business necessity."  Work had started (she was an employee and had been working in the past).  Maybe there was a violation of the Essential job functions criteria?  Had the worker claimed a "dissabled" status?

Something doesn't seem right here though, I will share any further information I find with you here and hope you will as well!  Thanks for bringing this to my attention!

I work in Oregon and have not heard about this yet.  Will have to contact the Oregon Physical Therapy Association to see if they can provide more information.

Thank you for pointing this out.

Jason Harris, PT, DPT