Employment-Ninth Circuit Rules That A Physical Capacity Evaluation Is A Medical Exam For ADA Purposes

In Indergard v. Georgia-Pacific Corporation, No. 08-35278 (9th Cir. 2009), the plaintiff, Kris Indergard, bought an action against her employer, defendant Georgia-Pacific Corporation (“Georgia-Pacific”), claiming that Georgia-Pacific had violated the Americans with Disabilities Act (the “ADA”) by terminating her employment based on her failure to pass a physical capacity evaluation. The plaintiff had taken a medical leave to undergo knee surgery. Georgia-Pacific policy had required employees to take a physical capacity evaluation (a “PCE”) before returning to work from medical leave. The plaintiff took, but failed, the PCE. She was subsequently terminated from employment. The case found its way to the Ninth Circuit.

In analyzing the plaintiff’s claim, the Court said that 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. The implementing regulations impose the same restriction, but state that an employer may make inquiries as to the ability of an employee to perform job-related functions. The question here becomes whether the PCE was a medical examination under the ADA or simply an inquiry permitted by the regulations.

To answer this question, the Court reviewed the EEOC Enforcement Guidance (the “Guidance”). The Guidance defines a medical examination as a procedure or test that seeks information about an individual’s physical or mental impairments or health. It provides the following seven factors which are to be used in determining whether a test is a medical examination: (1) whether the test is administered by a health care professional, (2) whether the test is interpreted by a health care professional, (3) whether the test is designed to reveal an impairment of physical or mental health, (4) whether the test is invasive, (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task, (6) whether the test normally is given in a medical setting and (7) whether medical equipment is used. The Guidance also lists some tests which are considered to be medical examinations, including blood pressure screening, cholesterol testing and range-of-motion tests that measure muscle strength and motor function. The Guidance further states that 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).

Applying the Guidance to the instant case, the Court ruled that the PCE was a medical exam. The PCE included range of motion and muscle strength tests, measurement of one’s heart rate and breathing before and after a treadmill test, and measurement of one’s aerobic fitness after the treadmill test. Each of these tests fall within the Guidance’s description of tests that are considered medical exams. The seven-factor test further indicates that the PCE was a medical exam, since the PCE was administered and interpreted by a licensed occupational therapist, a health care professional, the PCE was capable of revealing impairments of one’s health and the PCE went beyond collecting information necessary to determine whether one was physically capable of performing the task at issue. Thus, the Court concluded that the PCE was a medical exam. It remanded the case back to the lower court to determine whether the PCE, a medical exam, was job-related and consistent with business necessity.