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Under the ADA, an employer may not require a current employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.”

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October 2009

ADA Update


Fitness For Duty Exam

Tangles Employer In ADA Violation



By Christopher W. Olmsted

Under the ADA, an employer may not require a current employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.” This rule applies to all employees, whether or not they are disabled under the ADA. Confusion persists, however, over what “counts” as a medical examination. A recent Ninth Circuit Court of Appeals case titled Indergard v. Georgia-Pacific Corp. examined the issue and applied a very liberal standard.

A Paper Mill Worker Returns From Leave


Kris Indergard worked at a Georgia Pacific paper mill when she took medical leave for surgery work-related and non-work related injuries to her knees. Fifteen months later she returned to work with a doctor’s note.

Company policy required that Ms. Indergard submit to a physical capacity evaluation (PCE) before returning to work from medical leave, and GP so informed Indergard.

A physical therapist evaluated the job site and job duties. An occupational therapist, Ms. Starnes, took Ms. Indergard’s vital signs and observed range of motion, lifting capacity and grip. Ms. Starbes observed various other physical activities such as bending, crawling and climbing. She recorded details about Indergard’s vision, communication, cognitive ability, hearing, a attitude, and behavior. She measured her heart rate on a treadmill.

The occupational therapist determined that Ms. Indergard was unable to meet the lifting requirements of her position.

Did Ms. Starnes conduct a “medical examination”?

The Lawsuit


Ms. Indergard alleged various claims of disability discrimination under the ADA. She alleged that GP misrepresented the essential job functions of the position in which she had worked prior to going on medical leave, forced her to participate in the PCE without “an objectively reasonable basis for doing so,” and refused to allow her to return to employment after the PCE. She sought relief in the form of loss of income, and $250,000 in non-economic damages.

ADA Rule For Examinations: Prohibited examinations and inquiries


With some exceptions, the ADA generally prohibits employers from requiring an employee to submit to a medical examination, and also prohibits inquiries into whether an individual has a disability or as to the nature or severity of the disability. Examinations and inquiries are allowed if shown to be “job-related and consistent with business necessity.”

In the Indergard case, the key issue was whether the physical capacity evaluation was a medical examination under the ADA or simply an inquiry into whether Ms. Indergard was capable of performing the job related functions of the positions she was qualified to return to after her medical leave.

What is a “Medical Examination”?


Neither the ADA nor the implementing regulations define the term “medical examination.” The EEOC provides guidance.

  • Able to perform? Employers are permitted to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job.
  • Physical agility. Employers may use physical agility tests, which are not medical examinations and so may be given at any point in the application or employment process.
  • Evenhanded. Physical agility tests must be given to all similarly situated applicants or employees regardless of disability.

    If the test screens out or tends to screen out an individual with a disability, the employer would have to demonstrate that the test is job related and consistent with business necessity and that performance cannot be achieved with reasonable accommodation.

    A medical examination is “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” See: Enforcement Guidance on Disability-Related Inquiries and Medical Examinations.

    According to the EEOC, certain employer-required tests are generally not medical examinations, including physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting, as long as these tests do not include examinations that could be considered medical (e.g., measuring
    heart rate or blood pressure).

    The following seven factors are to be considered in determining whether a test is a medical examination. According to the EEOC, one factor may be enough to determine that a test or procedure is medical.”

    (1) Whether the test is administered by a health care professional.
  • In the Indergard case, the court concluded that the licensed occupational therapist was a health care professional.

    (2) Whether the test is interpreted by a health care professional.
  • The therapist interpreted test results and recommended Indergard not return to work.

    (3) Whether the test is designed to reveal an impairment of physical or mental health.
  • The court concluded that the broad reach of the test was capable of revealing impairments of Ms. Indergard’s physical and mental health, particularly in light of Starnes recording Indergard’s subjective reports of her current pain level, use of medication and assistive devices, and communication, cognitive ability, attitude, and behavior.

    (4) Whether the test is invasive.
  • No invasive tests were performed.

    (5) Whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task
  • The test measured heart rate, breathing and other physiological responses.

    (6) Whether the test normally is given in a medical setting
  • The test was administered in the therapists’ office.

    (7) Whether medical equipment is used
  • The only equipment used was a blood pressure cuff.

    This Was A Medical Examination


    The court noted that the PCE included range of motion and muscle strength tests, and the occupational therapist measured Indergard’s heart rate and recorded an observation about her breathing after the treadmill test. Each of these tests is within the EEOC’s description of tests that are considered medical examinations.

    The court was particularly focused on the treadmill test. “The post-treadmill test heart rate measurement and notation regarding Indergard’s ‘increased oxygen’ intake and demonstration of ‘poor aerobic fitness’ weigh heavily in favor of considering the PCE a medical exam, particularly because Starnes had already noted that Indergard ‘was able to walk for 20 minutes at 2.8 mph on treadmill without increased antalgic behavior or objective findings of pain complaints noted.’”

    The court observed that the testing went too far. Had the occupational therapist simply noted that Indergard was able to walk on the treadmill, noted the court, “it might be appropriate to characterize the treadmill test as a test that measured Indergard’s performance of a physical task.” “Measuring Indergard’s heart rate and recording observations about her breathing and aerobic fitness,” continued the court, “was not only unnecessary to determine whether she could perform the task, but is also the kind of examination that the EEOC Enforcement Guidance identifies as inappropriate to include in a non-medical physical agility or fitness test.” Thus the examination crossed the line, so to speak.

    Analysis


    The court’s ruling creates a very broad definition of what constitutes a “medical examination.” Employers risk straying into “medical examination” territory any time the examination does more than simply observe whether the employee can perform job functions.

    Employers should carefully limit the scope of a fitness-for-duty examination. A general physical examination can violate EEOC regulations. If such examinations are to be conducted by outside professionals (such as an occupational therapist) then be sure that the professional is well aware of ADA restrictions.

    Note, however, that a medical examination is not per se illegal. Medical exams are permissible where it “is shown to be job-related and consistent with business necessity.” That topic is beyond the scope of this article, but know that it is an issue that ought to be reviewed with HR professionals and legal counsel.

    Related Article:

    EEOC’S Proposed GINA Regulations Limit ADA Inquiries

    Disability Law Update Employer’s ADA Analysis Too Restrictive, Says Ninth Circuit




    Download entire October 2009 Legal Update in PDF format.

    This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.




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