Ninth Circuit Scrutinizes Return To Duty Physical Examinations

On September 28, 2009, the United States Ninth Circuit Court of Appeals notified employers that they may need to defend physical examinations imposed upon employees when returning from medical leave.  In Indergard v. Georgia-Pacific Corporation, 9th Cir. 08-35278, the court held that some such examinations may constitute "medical examinations" under the Americans with Disabilities Act ("ADA") thereby requiring that the employer demonstrate that each aspect of the examination is job-related and consistent with business necessity.

Kris Indergard was a consumer napkin operator who had taken a three-month medical leave to undergo knee surgery.  Although her orthopedic surgeon cleared her to return to work, Georgia-Pacific policy required that all employees undergo a comprehensive physical capacity evaluation before returning to work from medical leave.  The evaluation included tests measuring range of motion, muscle strength, and ability to lift and carry a certain weight.  The evaluation included a treadmill stress test, vision, hearing, cognitive and behavioral tests.  It was administered by a third-party occupational therapist. 

After the evaluation, Georgia-Pacific terminated Indergard finding that she could not return to her previous position based on the results of the evaluation and that she was not qualified for any other open positions within the company.  Indergard filed suit against Georgia-Pacific alleging discrimination under the ADA and related Oregon disability law.  Indergard argued that Georgia-Pacific had violated a provision of the ADA that prohibits an employer from requiring a current employee to undergo a medical examination or from making inquires as to whether an employee is disabled, the nature of the disability, or the severity of such disability unless the examination or inquiry is job-related and consistent with the employer's business necessity.  The trial judge granted summary judgment for Georgia-Pacific, finding that the evaluation was not a medical examination under the ADA. 

The Ninth Circuit reversed, relying primarily upon EEOC guidelines to find that this had been a "medical examination" for two different independent reasons.  The court observed that the range of motion, heart rate, and treadmill stress test were all within the EEOC's description of medical examinations.  The court rejected Georgia-Pacific's argument that measuring Indergard's blood pressure and heart rate were merely precautionary because Georgia-Pacific had measured these conditions not only before the stress test, but after it.  An evaluation of these physiological responses was the kind of examination that the EEOC Enforcement Guidance identified as inappropriate to include in a non-medical physical fitness test.

Although the court could have ended its opinion here, it went on to analyze the evaluation under the EEOC's Enforcement Guidance list of seven factors in determining whether a test is a medical examination, including whether the test measures psychological responses to performing a task, as opposed to measuring performance of the task itself, whether the test is used to reveal an impairment of physical or mental health, and whether the test is invasive.  The factors also include whether the test is administered in a medical environment by a medical professional, whether medical equipment is used, and whether the results of the test are interpreted by medical personnel.  Using these seven factors the court determined that the trial court had erroneously granted summary judgment for Georgia-Pacific.  The evaluation was administered and interpreted by an occupational therapist, as opposed to an employee.  The evaluation, insofar as it recorded Indergard's communication, cognitive ability, attitude and behavior was also capable of revealing physical or mental impairments.  The use of the stress test also weighed in favor of finding that the evaluation was a medical examination.  Recording Indergard's heart rate and breathing pattern after the stress test measured her physiological response to walking on the treadmill, as opposed to simply determining whether Indergard was capable of performing the physical task.

The court concluded that while the purpose of the evaluation may have been to determine Indergard's ability to return to work, its broad scope sought information about Indergard's health and mental impairments and involved other metrics capable of revealing whether Indergard suffered from a disability.  As such, the evaluation was a medical examination and Georgia-Pacific bore the burden of showing that it was job-related and consistent with its business necessity. 

The Ninth Circuit's decision to incorporate the EEOC's guidance factors has a potentially significant impact on employers that wish to use physical evaluations in order to gauge an employee's ability to return to work following medical leave.  While employers will want to adopt comprehensive evaluations that will provide them with sufficient information to adequately determine the employee's fitness to resume his or her position, employers must be careful to ensure that the evaluations are not overreaching, otherwise they may fall within the EEOC's definition of a medical examination and will require a showing that the test is job-related and consistent with business necessity.