Thursday, October 08, 2009

FCE Exam May Not Become Pre-Employment Exam Prohibited by ADA

Business Insurance reviewed a 9th Circuit Court of Appeals case which held a return to work FCE might have gone beyond testing for recovery from the specific work injury. The FCE reported data that might have revealed whether the Employee suffered a disability unrelated to the work injury. Under these circumstances the court held the exam could be an impermissible pre-employment physical under the ADA. The case was remanded for the lower court to determine whether the FCE was job-related and consistent with business necessity.

A commentator suggested the only thing the exam should explore is whether the injury or illness that caused the person to be out of work has healed to the point they are now capable of performing their function.

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