Index of Articles for the Fall/Winter 2007:
• Application of the FCE by Vocational ExpertsApplication of the FCE by Vocational Experts
By: Jasen M. Walker, Ed.D. C.R.C., C.C.M.
Vocational Experts are those rehabilitation professionals who testify in court matters regarding an individual’s capacities to perform competitive employment following the onset of injury or illness. Vocational Experts inform the court as to how an injury or disease causes changes in a person’s occupational potentials and earning capacity. A rehabilitation professional serving as a Vocational Expert (VE) is generally trained as a counselor or psychologist, is skilled in vocational assessment and/or job analysis and placement, and is customarily certified by one or more relevant professional associations, (1) such as the American Board of Vocational Experts. VEs are the only rehabilitation professionals who are specifically trained to evaluate an injured person’s post-accident occupational disability and employability.
Forensic vocational/disability evaluation does not involve a helping relationship between the vocational evaluator and the injured party. It consists of the VE executing an independent review of pertinent medical information (including an appreciation of the impaired individual’s functionality), a clinical interview, preferably vocational testing (i.e., aptitudes and interests), and a resultant assessment of the injured person’s transferable skills and residual employability.
In formulating an analysis of residual employability, the VE relies upon medical documentation regarding the injured person’s impairment(s) and residual functional capacity (RFC), or what the impaired person is able to do physically and/or mentally despite the medically-defined impairment(s). In vocational disability evaluation, the RFC report bridges the gap between the existence of medical impairment and the assessment of occupational disability/residual employability. The RFC for those individuals who have physical or exertional impairment(s) has customarily been established by healthcare providers and is an evolving methodology.
For many years, members of the legal system and employers relied upon a physician to make statements as to whether an injured individual could work. Concerned parties would actually ask physicians whether an injured employee, for example, could work without considering issues of what the person might be qualified to do or what the demands of the job might be. All too frequently, exclusive of laboratory methods, the physician responded to items on a checklist and provided only a “guesstimate,” or best clinical judgment, in terms of the patient’s physical abilities to perform work-related tasks. Unfortunately, this fairly subjective process of delineating RFC continues in some instances.
Talmage and Melhorn edit a text that instructs physicians to assess, negotiate, and promote a patient’s return to work by considering multiple factors in the patient’s history, including functional capacity evaluations (FCEs). (2) Talmage and Melhorn write, however, “The term functional capacity evaluation is a misnomer in that it tells the physician whether or not, on the day of testing, the patient was or was not willing to demonstrate the ‘current ability’ to do a job or job tasks.” (3) By making FCEs the focus of its entire December 2004 Journal of Forensic Vocational Analysis, the American Board of Vocational Experts, too, has recognized the need to improve state-of-the-art functional testing for a variety of reasons. (4-8)
Rehabilitation professionals have long known that vocational disability is a “relational outcome, reflecting the individual’s capacity to perform a specific task or activity, contingent upon the environmental conditions in which they are to be performed,” as presented by the Institute of Medicine Report in 1997 and cited by Cocchiarella and Andersson. (9)
In its Guides to the Evaluation of Permanent Impairment (10), the American Medical Association speaks to the difference between impairment and disability. According to the Guides, impairment is defined as “a loss, loss of use, or derangement of any body part, organ system or organ function.” On the other hand, disability is “an alteration of an individual’s capacity to meet personal, social, or occupational demands,” which is best evaluated by non-medical means. Still, vestiges of expecting or charging medical personnel with determining vocational disability remain in the healthcare, legal, and disability systems. Time and experience have shown that confusion of medical impairment with vocational disability has been waning.
As disability determinations, particularly within the Social Security Administration, have become more refined, a growing awareness has emerged that physicians are not formally trained to define an individual’s occupational capabilities and, therefore, are unable to accurately declare an individual as totally disabled from working or, conversely, capable of gainful employment. For many practitioners, a patient’s RFC is most accurately assessed with a formal FCE. In determining the vocational impact of medically-determined physical impairment, the VE relies upon functional capacity data detailing the impaired individual’s safe physical capabilities in terms of lifting, carrying, reaching, handling, bending, and other exertional work-like behaviors. The FCE is regarded by many as the state-of-the-art method of determining an individual’s exertional capabilities within the work classifications of sedentary, light, medium, etc. VEs determine an individual’s employability from measured functional capacities.
VEs are required by ethical standards and case law to provide opinions regarding an individual’s employability on the basis of reliable methodologies. In a current editorial to the American Board of Vocational Expert newsletter, the Ethics Committee Chairperson writes, “…our opinions must be based upon reliable and defensible data and it is our responsibility to investigate whether those assessment tools fit that description. Given that condition and the body of research questioning the validity, reliability, and efficacy of functional capacity evaluations (FCE), is there sufficient evidence to support their use in their current state as a foundation upon which to base one’s opinions regarding sustained functional capacity and, therefore, employability and labor market access?” (11)
VEs have expressed concern regarding the validity and reliability of FCEs as well as their application in both forensic matters and return-to-work programs. Refinement of FCEs may be dependent on developing a meaningful dialogue between those measuring RFC and those charged with the responsibilities of defining residual employability and helping patients return to work.
Rehabilitation counselors and psychologists with expertise in vocational matters may be asked to provide return-to-work assistance and, thereby, have an ongoing therapeutic relationship with an individual including days and weeks of observation. VEs rendering independent opinions in court matters, however, are typically divorced from the provision of vocational rehabilitation services to the individual being examined. As a result, forensic VEs generally do not have the opportunity to observe the injured person’s work behavior over an extended period of time and, therefore, are unable to document what an individual can physically do in a work setting, either by trial and error or through work adjustment processes. Therefore, VEs must rely on data gathered from other sources, including FCEs, regarding the individual’s physical capacities.
Dakos (4) states, “The role of the VE in considering the findings of a functional capacity evaluation is that of interpreter/translator.” With reliable information regarding an individual’s RFCs, the VE can predict with professional certainty the examinee’s specific employment options and occupational potentials with or without job accommodation.
VEs, as well as other forensic experts, are required to present “scientific evidence” that helps a judge or jury determine if occupational disability and economic damages follow personal injury. This requirement is codified in the Federal Rules of Evidence. (12) The Rules help to define what evidence is admissible. Rule 702 specifically states:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise….”
All forensic experts are further challenged by court rulings, such as Daubert, Joiner, and Kumho, (13) demanding greater relevance and reliability in their assessment methods. Increasingly, all forensic experts are being compelled to establish with the court that their evaluation methods are valid and reliable and, most significantly, are based on “scientific” and “reproducible methodologies.”
As the interpreter/translator, the VE relies on others, including those who carry out well-designed FCEs, for accurate data. The importance of FCEs is increasing as both vocational and medical experts realize the inadequacy of medical personnel reporting functional limitations based on office examinations, an injured worker’s self-reports, and other subjective means. The continuing refinement of how an impaired individual’s physical capacities for competitive employment are defined includes the advancement of the FCE.
As stated, however, the development of valid and reliable tools for measuring the impaired individual’s physical capacity remains a concern for VEs. The December 2004 issue of The Journal of Forensic Vocational Analysis focuses exclusively on the use of FCEs in vocational forensics. According to contributors to that particular issue of The Journal, troublesome issues in state-of-the-art FCEs include:
§ validity and reliability, (5)
§ generalizing performance from a four-hour assessment to an entire workday, (6,7)
§ sincerity of effort, (6,4) and
§ whether FCEs meet legal standards of relevance and reliability. (8)
No effort is being made here to revisit the concepts of test validity and reliability in any detail, as those concepts are more than adequately covered elsewhere. However, qualified VEs are cognizant of the basic concepts of validity and reliability and are ethically bound to consider these factors as well as test standardization or uniformity of testing procedures in formulating their forensic findings and opinions.
If a test of an individual’s performances are to yield data that allow for comparisons with others or predictions of the same individual’s behaviors in different settings or on different occasions, the testing should be administered in a uniform fashion. That is, the test problems, conditions for test administration, scoring procedures, and interpretations need to be consistent and carried out in a standardized manner. (14)
In research, validity and reliability are essential aspects of an experiment that has merit. Validity is the ability of the experiment or test to accurately reflect what it purports to measure and ecological validity is a subset of test validity. (15)
FCEs must be capable of accurately providing a foundation from which to infer appropriate, meaningful, and useful behavior regarding physical functioning in the workplace. That is, FCEs must be ecologically valid or capable of reflecting the examinee’s real-world performance.
Every VE knows that the value of a standardized measure is determined by its reliability as well as its validity. The assessment of reliability invariably boils down to a simple summary statistic, the reliability coefficient, but practically speaking, reliability speaks to consistency. If FCEs are to be of value to VEs, injured people, the court system, physicians, and employers, they must be consistent not only from test to re-test, but also when administered by two or more different examiners and in between parts of an assessment. As King (5) states, “To the clinician, reliability means that changes in a client’s performance can be attributed to real change in function rather than to measurement error.”
FCE data are often interpreted in an accompanying narrative report authored by the evaluator. The language contained in FCE reports can be difficult to interpret as suggested by the following: “Results obtained indicate this client performed with determined, consistent effort and demonstrated appropriate pain behaviors.” It is difficult to appreciate the meaning of these words exactly in terms of what the FCE measures or what it purports to measure (i.e., the individual’s physical capacities), and whether, if re-tested at another time or by another examiner, this language would appear again in the narrative report. However, the primary concern must be whether the functional capacity examinee’s measured behaviors have application to the workplace.
Some proprietary FCEs present inconsistent information regarding standard physical classifications of strenuousness defined by the U.S. Department of Labor. (16) Those classifications are sedentary, light, medium, heavy, and very heavy. Some FCE reports combine these definitions (as in sedentary-light) and by doing so, confuse the issue of whether the examinee is capable of one exertional level or both levels. This could represent a substantial difference in RFC, resultant employability, and ultimately earning power.
VEs rely heavily upon this terminology to make accurate and reliable assessments of an individual’s residual employability. FCE report language such as, “Based on results obtained, the client is able to perform Sedentary-Light PDC (physical demand component) work with occasional lifting below waist height to 25 pounds, and the client lifted 35 pounds to shoulder and 20 pounds overhead,” potentially confuses the VE’s assessment. By definition, the capacity to lift 25 and 35 pounds places the individual above the light work domain and into the medium category of work as defined by the U.S. Department of Labor. (16) In offering quantitative data regarding lifting and then mislabeling that data with the incorrect physical work classification, the FCE report can lead to a potentially inaccurate vocational evaluation and/or an incorrect forensic conclusion.
A standardization of language must be basic to the FCE and congruent with accepted definitions of physical strenuousness. Efforts to consistently employ the federal definitions of work in FCEs would prove helpful to the subsequent process of conducting accurate vocational assessments. Otherwise, it should be left to the VE to match the examinee’s measured physical capabilities with the Department of Labor definitions or a specific known job description. Uniformity of language regarding physical strenuousness would improve the interpretation of FCE outcomes.
Among the different FCEs utilized in determining how an individual’s exertional impairments translate into RFC, one of the more significant variables is whether the FCE relates to a full day and/or a full week of work. The VE may consider this distinction as the difference between part-time and full-time employment. VEs generally remain at a loss as to how FCEs can predict part- or full-time employment or endurance in general.
As an actual example, an FCE report contained this language: “In a valid representation of physical capabilities based upon consistencies and inconsistencies when interfacing grip dynamometer graphing, resistance dynamometer graphing, pulse variations, weights achieved, and selectivity of pain reports and pain behaviors,” the individual manifested a “sitting tolerance of 23 minutes demonstrated during keyboard activity and history review.” In this case, the functional capacity assessment specialist “recommended” a workday “tolerance” of only two hours. Within weeks of these FCE findings, when examined for vocational evaluation, the same individual was able to remain seated for more than two hours without interruption while completing paper-and-pencil vocational tests. More discrepancies between FCE “recommendations” and actual vocational assessment behaviors were observed.
In still another FCE utilizing a different protocol than that referenced above, the document reporting the FCE data contained a “functional capacity summary” that described the examinee’s sitting job demands as frequent (34-66% of the time). However, additional comments read, “It is recommended that he take short standing/stretch breaks during periods of prolonged sitting (e.g., greater than one hour).” No reason was given for this added comment, but the vocational ramifications are potentially significant. The examinee was a tractor-trailer truck driver, and even though he could perform medium work with frequent sitting, it was “recommended” that he not sit for greater than one hour without taking a “short” standing/stretching break, undoubtedly incompatible with his job demands and not at all explained in the FCE report.
Sincerity of effort remains one of the most controversial and unresolved issues associated with the efficacy of FCEs, according to Lechner (6) and others. (17,4) According to Lechner, (6) “The standardization, reliability, and validity of some of the methods used to determine sincerity of effort are questionable.” As an example, Lechner notes that Waddell’s non-organic signs are frequently used in FCEs. Scoring positively on the Waddell’s should not allow one to conclude that the client is withholding full effort, and conversely, demonstrating less than the necessary 3 out of 8 positive scores on the Waddell’s is not necessarily indicative of “appropriate pain behavior,” by which one could conclude that sincere effort has taken place.
Dakos (4) speaks of multiple factors that should be considered in assessing genuine performance or effort and recommends that skilled functional capacity evaluators observe and report, but not analyze, performance-limiting behaviors. Analyzing performance-limiting data avoids the potential error in logic that an individual who has conceivably set forth “genuine effort” during an FCE is necessarily a sincere and reliable examinee under all circumstances, including when returned to work, where conditions might be quite different than the controlled atmosphere of an FCE.
With respect to pain-related deficits, the results of FCEs are frequently described in reports with rather confusing language. Too frequently, the evaluation can be affected by a subjective complaint and, in some cases, less than maximal effort by the examinee. In cases involving litigation, the injured worker’s effort in testing is often an issue, particularly if the person being evaluated anticipates financial gain by demonstrating weakness and/or dysfunction.
FCEs are also limited in their potential to discern between the results produced by pre-existing impairment (e.g., osteoarthritis and degenerative joint disease) and traumatically-induced, accident-related impairment. VEs may be charged with the responsibility of determining residual employability and earning power following the accident, but based on the medical history, the individual may have had a pre-existing exertional impairment affecting strength and, of course, FCE outcomes.
Consider, for example, a 56-year-old truck driver with a history of spinal complaints and radiographically documented severe spondylosis and degenerative disc disease. Nonetheless, he was working as a truck driver prior to a work-related accident in which he sustained a shoulder injury lifting. After undergoing physical therapy, he is examined with an FCE and found capable of lifting no more than 20 pounds, and therefore, restricted to light work as defined by the U.S. Department of Labor. (16) The government classification of his job is medium work, which is more demanding than his measured capacity for light work. However, the question is: “Which impairment limits his measured functional capacity?” Is it his accident-related shoulder pathology or his pre-existing spinal disease? FCEs have yet to reach a level of sophistication to answer this question.
Still, the question of discerning in this particular case which impairment caused exertional limitations could have particular importance to a vocational-legal argument that the examinee could have worked and earned money indefinitely as a truck driver, for example, had the accident-related shoulder injury not occurred. Alternatively, the FCE might be used in a setting that concerned itself with apportionment. All too often individuals come to functional capacity evaluations with strength-limiting co-morbidities, perhaps only one of which is related to trauma resulting in a lawsuit. Future FCE research and design might focus on these issues of differentiation and apportionment.
Functional testing has become an increasingly important aspect of the VE’s analysis of residual employability, but it is not beyond challenge. With the fabled U.S. Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, (13) the American court system has increased the standards and refined its definition of what constitutes relevance and reliability for expert testimony. According to Dominick, (8) with the standards of expert testimony increasing, VEs should be prepared to deal with cross examination regarding measurement theories, reliability, validity, test selection, testing methods, outside entity standards, and FCE vulnerability.
Standardized FCEs would seem to hold substantial promise in providing accurate and reliable data regarding an individual’s physical capacities for work. This is particularly true when compared to the conjecture of a healthcare professional who has been asked to simply fill out a checklist or provide a generic statement (e.g., “light duty”) of what he/she thinks or feels a patient might be able to do in the workplace. In this respect, FCE standardization seems far off. Lechner (6) identifies ten different FCE protocols, all proprietary, and noted an apparent lack of research supporting the validity and reliability of the methodologies. King (5) encourages and challenges FCE developers to conduct research and improve their assessments to levels of reliability and validity that are scientifically sound and legally defensible.
Although FCEs hold the potential to be an invaluable tool for the VE, there is a need to continue to refine the process and especially the precision and standardization of the report language. VEs remain concerned regarding the efficacy of FCEs. When the purpose of the FCE is to provide the VE with the basis for case testimony, FCE validity, reliability, and language are critical. Functional capacity evaluators and VEs will, for the foreseeable future, need to continue a refinement dialogue.
References:
1. Weed RO, Field TF. Rehabilitation Consultant’s Handbook. Revised Edition. Athens, GA: Elliott & Fitzpatrick, Inc.; 2001:31-32.
2. Talmage, JB, Melhorn, JM. (Eds.). A Physician’s Guide to Return to Work. American Medical Association; 2005.
3. Talmage, JB, Melhorn, JM. How to think about work ability and work restrictions: Risk, capacity, and tolerance. In A Physician’s Guide to Return to Work. American Medical Association; 2005:10.
4. Dakos MS. The application of functional capacity evaluations in the provision of vocational expert services. The Journal of Forensic Vocational Analysis. 2004;7:105-117.
5. King PM. Analysis of the reliability and validity supporting functional capacity evaluations. The Journal of Forensic Vocational Analysis. 2004;7:75-82.
6. Lechner DE. The well-designed functional capacity evaluation: application in forensic vocational analysis. The Journal of Forensic Vocational Analysis. 2004;7:83-96.
7. McDaniel RS, Tilton J, & Philadelphia, A. Use of the functional capacities evaluation in the vocational expert practice: help or hindrance. The Journal of Forensic Vocational Analysis. 2004;7:97-104.
8. Dominick BK. Daubert & ADA decisions: will functional capacity evaluations hold up in court? The Journal of Forensic Vocational Analysis. 2004;7:119-126.
9. Brandt EN Jr, Pope AM. Enabling America: Assessing the Role of Rehabilitation Science and Engineering. In: Guides to the Evaluation of Permanent Impairment. 5th Ed. AMA Press; 2005:8.
10. Cocchiarella, L, Andersson, G. Guides to the Evaluation of Permanent Impairment. 5th Ed. AMA Press; 2005:2-3.
11. Hale, BL. From the Editor’s Laptop [editorial]. The Vocational Expert. 2007:3.
12. Federal Rules of Evidence. No. 8, Washington: U.S. Government Printing Office; 2004.
13. Field TF, Choppa T, Dillman EG, et al. A Resource for the Rehabilitation Consultant on the Daubert and Kumho Rulings. Athens, GA: Elliott & Fitzpatrick, Inc.; 2000:61-104.
14. Anastasi, A. Psychological Testing. 7th Ed. Prentice Hall; 1997.
15. Hammond, KR. Ecological validity: Then and now. Available at: http://www.brunswik.org/notes/essay2.html. Accessed October 1, 2007.
16. Dictionary of Occupational Titles, Revised. Fourth edition. U.S. Department of Labor; 1991:1013.
17. Geisser ME, Robinson M, Miller Q, & Bade S. Psychosocial factors and functional capacity evaluation among persons with chronic pain. The Journal of Occupational Rehabilitation. 2004;13:259-276.
Primary care physicians are asked to define low back pain in accordance with one of three general categories:
· nonspecific low back pain, which affects about 85% of patients
· back pain potentially associated with spinal conditions, such as stenosis, sciatica, or vertebral compression fractures
· back pain potentially associated with another specific cause, such as cancer
The new guidelines urge doctors to not order imaging or other diagnostic tests (such as MRIs, CT scans, or x-rays) for patients with “nonspecific low back pain.” Such tests should be “reserved for patients with severe or progressive neurological deficits or progressive neurological deficits…such as infection or cancer.”
The guidelines were promulgated by a joint research team from the American College of Physicians and the American Pain Society. The guidelines were made public on October 2, 2007.
The significance of the guidelines for rehabilitation professionals is in understanding the basis (the three general categories) for the diagnoses doctors are making of individuals with low back pain.
Ivan Illich, the Austrian philosopher and social critic, may be best remembered for his 1971 text, Deschooling Society. The core assertion of this text was that the educational system in 1971 had failed. In the text, Illich made positive suggestions for reinventing the learning process.
In 1976, Illich, who died in 2002, followed up his attack on the educational system with one on the medical care system. This attack, in the text Medical Nemesis: The Expropriation of Health, centered on the term “iatrogenesis,” which, in a literal translation, means, “brought forth by the healer.” That is, illnesses and injuries are, too frequently, brought on by exposure to the health care system.
Updates on Illich’s original charges substantiate the concept. In a 2002 study, Dr. Barbara Starfield of The Johns Hopkins School of Hygiene and Public Health reported in The Journal of the American Medical Association that in the U.S. alone, deaths per year (2000) and their causes include:
· 12,000 from unnecessary surgery
· 7,000 from medication errors in hospitals
· 20,000 from other errors in hospitals
· 80,000 from infections in hospitals
· 106,000 from non-error, negative effects of drugs
These 225,000 deaths in 2000 were attributed to iatrogenic causes. It is important, in vocational rehabilitation especially, that these statistics show that:
· these data are derived from hospitalized patients only
· they represent deaths only and do not include any negative effects associated with pain, discomfort, or, more importantly, disability
There are a number of causes of iatrogenesis. They include, but are not limited to:
· misdiagnosis
· medical error
· negligence
· application of faulty procedures
· performance of unnecessary treatments
· wrong medications or incorrectly read prescriptions
· radical or experimental treatments
CEC Associates, in a related article (see “Low Back Pain,” above), has addressed the issue of the “performance of unnecessary treatment” in respect to a complaint of low back pain by prescribing unwarranted imaging or other diagnostic tests in cases of “nonspecific” low back pain.
A contemporary term associated with iatrogenesis is cascade iatrogenesis. This condition applies to situations where an increasing series of interventions are undertaken to solve a previous diagnosis. It’s all in the Hippocratic oath: First, do no harm.
In the spring of 2007, the American Board of Vocational Experts (ABVE) revisited the issue of the ethical standards regarding vocational assessments. These standards are, and should be, of critical concern for all rehabilitation professionals, including attorneys litigating cases involving vocational disability and/or a loss of earning power.
Betty Lindsey Hale, the ABVE’s Ethics Committee Chairperson, reminded members of their responsibility to the ABVE Code of Ethics, especially as the Code addresses the issue of vocational assessments.
The critical passage of the Code reads:
Vocational Experts shall ensure that the selection, administration, and interpretation of assessment measures is done in accordance with the standardization attributed to each test instrument.
Specifically, the Code further specifies that vocational experts will:
· carefully consider the specific validity, reliability, and appropriateness of the tests used
· ensure that the administration of all tests is performed under the same conditions that were established in the standardization process
· ensure that vocational experts using third-party services demand that these parties also adhere to the ABVE ethical standards
These specifics regarding vocational assessments are important and consistent with the standards set forth by the National Council on Measurement in Education and other groups concerned with assessment. Unfortunately, in Pennsylvania, the Rules of Civil Procedure (4010.1) are in potential conflict with these standards.
Rule 4010.1 pertains to the Evaluation of Earning Capacity (including vocational assessment) and states that the evaluation is subject to provisions of Rule 4010(a)(3) through (b)(3) inclusive. Rule 4010, Physical and Mental Examination of Persons, states that the person being examined has the right to have counsel or another representative present during the examination and to audio-record the examination.
Rule 4010.1 does not take into account the intricacies of administering psychometrics, including the set, setting, and integrity of testing. Moreover, recording testing threatens the security of testing. Although with this Rule, attorneys may pursue their client’s rights to legal representation and/or audio-recording of the entire vocational evaluation, including vocational testing, recording testing is clearly in opposition to the ABVE Code of Ethics regarding administering vocational measures in accordance with the standardization to which tests are normed.
On their website, the National Institute of Neurological Disorders states that:
· acute back pain lasts from a few days to a few weeks
· most low back pain can be treated without surgery
· most patients with back pain recover without residual functional loss
Low back pain cases represent a significant proportion of those being litigated for damages. It is important to note that when surgery is performed for the pain, it may worsen the impairment and add to the damages.
Attorneys, especially young or new attorneys, need to know how damages are calculated. The calculations are based on both vocational and economic assessments. To assist attorneys in working through the underlying basics of assessing damages, CEC Associates, Inc., has partnered with The Center for Forensic Economic Studies to provide in-house consultations to explore this critical process. To discuss the potential for a session like this for your firm, call Dina at (800) 246-9767.
Updating the Family Medical Leave Act (FMLA)
At least one presidential candidate has addressed the FMLA and its future. Democratic candidate Hillary Clinton has proposed extending unpaid leave to an additional 13 million workers. She suggested that the government should spend up to $1 billion per year on paid leave programs. Clinton proposes to expand the coverage by changing the present FMLA mandate that covers companies with 50 employees to companies with 25 employees.
Clinton also said that she would encourage individual states to enact their own paid leave programs and that the federal government should provide grants to those that do. The FMLA provision for up to 12 weeks of unpaid leave and the qualifying reason for the leave would not change under Clinton’s proposal.
Mario Capecchi is an American molecular geneticist who was a 2007 co-winner of the Nobel Prize in Physiology or Medicine. He graduated from George School, a Quaker boarding school in Bucks County, in 1956. In 1967, Capecchi received a Ph.D. in biophysics from Harvard University. Later, he taught at Harvard and is presently on the faculty of The University of Utah. Capecchi is well-known for his pioneering work in gene targeting in mice, the underpinning knowledge that made cloning and genetic (stem cell) research and modification possible.
The most remarkable part of the Capecchi story is how he achieved what he did in life after an incredibly difficult childhood. Capecchi was born in Italy in 1937 to an American-born mother, Lucy Ramberg. Ramberg married an Italian who served and died in WWII as an airman in the Italian army. After her husband’s death, Ramberg became an outspoken critic and pamphleteer as a leading member of a highly visible anti-fascist group in Italy. As punishment, she was sent to Dachau concentration camp, one of the few Americans to be so interned.
As a result of the incarceration, Capecchi was left to fend for himself. At four and a half years old, he became a street urchin, and for the next four years, he lived on what he could beg on the streets as a homeless child. When his mother was released (fortuitously, as most internees were never released) from Dachau, she searched a year and a half for Capecchi before finally finding him in a hospital, ill with a fever and nearly starved to death. In 1946, they moved to the Philadelphia area under the sponsorship of Capecchi’s uncle, an American physicist working for RCA.
The remarkable part of Mario Capecchi’s story is how one can rise from such an appalling and difficult start in life to become a world-renowned scientist.
A number of the employers CEC Associates, Inc., has worked with over the past several years offer wellness programs for their employers. A critical component of a well-designed wellness program is predicated on health risk assessments (HRAs). The HRA is a screening test to identify risk factors.
The basics of this approach is that employees with risk factors (or, in too many cases, multiple risk factors) cost more to care for than other workers. The challenge for the wellness program, therefore, is to get those with risk factors to reduce unhealthy behaviors.
The Americans with Disabilities Act (ADA) recommends that new employees are given employment contingent on a satisfactory medical examination conducted by a physician (paid for by the employer). The ADA requires that the physical examination be administered only after a job offer has been made.
Once a job candidate has been hired, the employer’s primary responsibility is to protect the workforce, and the most effective means of achieving that is through an ongoing wellness program.
With these minimum essentials in place, the employer’s next responsibility is to provide the new hire with a written job description. The job description is based on a job analysis that considers all of the physical and environmental realities of the job. The job description must be developed by a human resources professional specifically trained to create a job description based on measured (weight to be lifted, repetitive motions, duration of standing/sitting, etc.) components of a specific job.
People searching the internet with the descriptor of “career assessment” may miss (in the websites uncovered) a critical aspect of the issue. There are two parts to a useful career assessment:
1. The assessment itself
2. The interpretation of the assessment results
There are a number of career assessment instruments. Some of them are recognized as standard tests, while others are customized by an entity especially involved with career planning.
But tests themselves don’t give answers. Regardless of the validity of the assessment instrument used, a successful outcome in making career direction choices is dependent on the knowledge and experience of the person interpreting the assessment results.
Experience counts. Knowledge of the process counts. Knowledge of the potential choices counts. They count a lot!
Esther Weiss of CEC Associates, Inc., has 30 years of experience in working in career counseling. She is a licensed professional counselor.
In career assessment, the quality of post-assessment counseling is paramount. What is important to the person taking the assessment are the guidance and recommendations that come out of the assessment results. The quality of career assessment derives from years of experience working in the profession.