Avoiding ADA Violations when Testing New Hires – A Legal Case

26 Jul

WorkSaver Newsletter – July, 2016

An EEOC case was filed against Cessna Aircraft in the U.S. District Court for the Eastern District of Wisconsin (Equal Employment Opportunity Commission vs. Cessna Aircraft Co., Civil Action No. 2:15-cv-01166-LA) on September 9th, 2015. The case was filed with the charge that Cessna disregarded ADA guidelines when rescinding job offers using Worker’s Compensation Guidelines after learning about medical conditions.

The lawsuit arose when a job applicant informed Cessna that he was scheduled for carpal tunnel surgery after he successfully passed a post offer medical exam and received a physician’s report that he was able to work without restrictions. Upon learning of this planned medical procedure, Cessna withdrew the job offer based on concerns related to the workers’ compensation estimate of average time for recovery from this type of surgery.

In this case the worker had not undergone a job-specific post-offer, pre-placement functional examination to determine if he was physically able to perform the essential functions of the job safely. Consequently, there was no validation of the person’s abilities to perform the job safely with or without accommodations. In addition, the medical release provided to the worker was not based on well defined job-specific physical demands but more likely than not, a general impression of the job demands by the medical physician.

If Cessna had required an ADA-compliant job specific post-offer pre-placement functional examination as offered by WorkSaver, a valid functional job description describing the physical demands of the job would have been available for review. In such a scenario, the functional capacity evaluator, upon gaining post-job offer knowledge of the impending surgery, could have required, out of concern for safety, a job-specific medical release before proceeding with the job-specific functional examination. The key here is that the medical release form provided to the post-offer job candidate to give to the medical physician would have listed the job-specific tests (essentially describing the physical job requirements). This type of job-specific medical release form would permit a medical physician or other healthcare provider to make a properly informed decision as to whether or not the medical condition and/or impairment would be aggravated by the functional tests and actual physical demands of the job.

Since the Cessna worker’s surgery or medical condition was perceived by Cessna to cause occupational disability, and given that the worker’s job was rescinded without the ability to allow the worker to demonstrate the safe ability to perform the essential functions of the job, EEOC charged Cessna with violation of the ADA, and Cessna was required to pay $167,500 in fines and other fees. Cessna’ mistake was using Worker’s Compensation guidelines for determining a disability, rather than the ADA, and not conducting a valid job-specific functional exam to determine the ability of a potential worker to safely perform the essential functions of the job.

The WorkSaver program is designed to prevent hiring problems and ADA violations as experienced by Cessna in this case. By validating the essential functions of each job and creating a detailed FJD, both medical releases and medical testing can be designed to properly assess whether or not a person can perform a job safely with or without reasonable accommodations. By assisting our clients in conducting interactive accommodation reviews, the employer is able to determine if reasonable job accommodations are available or if accommodations create an undue hardship. Administering and documenting the use of this ADA compliant job placement process is the best defense against potential ADA violations.

For more information on the WorkSaver process refer to or call the WorkSaver office at (800) 414-2174.

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