When is a Functional Capacity Evaluation Discriminatory?

Functional capacity evaluation, or FCE, is an assessment performed by qualified personnel to test if a returning worker is fit to work after an injury. Many employers choose to implement FCEs to ensure that the injured worker can perform their job without compromising their own safety and the safety of their colleagues. Furthermore, FCEs can be an effective tool in guarding against those who might be feigning their sickness to acquire leave benefits or workers’ compensation.

FCEs are designed to scientifically and objectively measure a worker’s abilities and limitations when it comes to performing specific tasks. When performed in an unscientific and subjective manner, however, these tests could be discriminatory, and thus unlawful.

According to the website of Cary Kane, LLP, anyone who feels that they have been discriminated at work with these tests might be eligible to file a complaint at the Equal Employment Opportunity Commission (EEOC). But how can you know if an FCE is discriminatory? According to the EEOC, an FCE might be in violation of the law if:

  • The test elicits information about a disability, for instance, by asking disability-related inquiries, which could be in violation of the Americans with Disabilities Act. These may include questions about an employee’s disability and how they become disabled, and requests to provide medical documentation relating to their disability.
  • The test is “medical” in nature, which means it was done to reveal a worker’s mental and/or physical impairments. The EEOC weighs the validity of an FCE based on a variety of factors, including how invasive the test was (i.e., if it involves inserting catheters), whether it was administered and interpreted by a medical professional, and whether it was conducted in a medical setting and with medical equipment.

Furthermore, according to the EEOC, employers are only entitled to ask disability-related question or conduct medical examination to workers if they have a reasonable belief that it is “job-related and consistent with business necessity.” For instance, an employee working as a crane operator might be asked with disability-related inquiries if the medication he is taking for his hypertension makes him feel lethargic and unable to concentrate.

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