Sept. 28, 2009 Ninth Circuit Court of Appeals Rules That Employer's Fitness For Duty Exam Was An Unlawful Medical Examination

Summary

Yesterday, in Indergard v. Georgia-Pacific Corporation, the Ninth Circuit Court of Appeals held that a fitness for duty examination conducted when an employee returned from a leave of absence violated the Americans with Disabilities Act as an unlawful medical examination.

Discussion

The plaintiff, Kris Indergard, worked for Georgia-Pacific as a Consumer Napkin Operator. She took a medical leave of absence for a non-work related injury. Upon her return, she presented a doctor's note with physical restrictions. The employer initially informed her that she could not perform her job, or another, based on her weight restrictions. In response, she returned with a revised doctor's note that did not contain the same weight restrictions. At that point, the employer sent her to a "physical capacity examination," i.e. a fitness for duty examination, before it would return her to work. The comprehensive examination lasted two days and included, among other things, a complete medical history, testing vitals, treadmill test, simulated lifting, vision and hearing screening, behavioral and cognitive ability assessment, and observed tasks such as crawling and climbing.  Based on the examination, the employer concluded she could not return to her former job, or another, and terminated her employment.

The Ninth Circuit reversed summary judgment for the employer based on a single issue: Did the examination constitute an impermissible medical examination under the ADA? In ruling that it did, the Court adopted a seven part test provided by the Equal Employment Opportunity Commission.  The factors were: (1) Did a health care professional administer the test? (2) Did a health care professional interpret the results? (3) Was the test "designed to reveal an impairment"? (4) How invasive was the test? (5) Did the test "measure the employee's performance" of a task? (6) Was the test usually given in a "medical setting"? and (7) Was medical equipment used? The Court noted that an examination could be deemed unlawful if it met just one of the factors, but here, it found most of the factors weighed against the employer.  Therefore, the Court concluded the examination was an unlawful medical examination.

What This Means

Under the ADA, an employer cannot force employees to undergo a "medical examination" unless it is "job related" and "consistent with business necessity." An employer can, however, require an employee to submit to a fitness for duty examination after a leave of absence if the examination merely tests the ability of the employee to do the job in question. Here, if the employer had simply done simulated tests of the job duties, without reference to measures such as blood pressure and general fitness, the test may very well have passed muster.

In the end, employers must be very careful when requiring any sort of physical examination to ensure that only the ability to do actual job functions is being tested.  Notably, the "job related" and "consistent with business necessity" is a very hard standard to meet. 

This E-Update was authored by Melissa Listug Klick.  For more information, or questions, please contact Ms. Listug Klick or any Paul, Plevin attorney at (619) 237-5200.