Drawing the Line Between Physical Fitness Tests and Medical Examinations Prohibited by the ADA

This Advisor column was originally published in October 2009.

In Indergard v. Georgia-Pacific Corp., the U.S. Court of Appeals for the Ninth Circuit examined the issue of whether a physical capacity evaluation for employees returning to work from medical leave is a lawful physical fitness test, or a prohibited medical examination under the Americans with Disabilities Act ("ADA").

Medical Examinations v. Physical Fitness Tests. Under the ADA, a medical examination or test must be job-related and consistent with business necessity. This requirement applies to all employees, whether or not they have disabilities under the ADA.

Medical examinations or tests include those that measure physiological responses to activity, such as blood pressure or heart rate, procedures that are invasive and/or require taking a sample of bodily fluids or breath, and tests which are routinely performed by medical personnel or in a medical setting. Generally, physical fitness tests alone, i.e., those that measure endurance or agility, are not medical examinations.

The Facts in Indergard. After suffering work related injuries to her knees, Indergard, a mill worker with Georgia-Pacific, took a medical leave of absence from the company. After two years away from her job, Indergard's doctor authorized her to return to work with permanent restrictions. In accordance with Georgia-Pacific policy, Indergard was required to undergo a physical capacity evaluation ("PCE") before she could return to work from her medical leave.

The PCE was conducted by a state-licensed occupational therapist and took two days to complete. The test included a range of motion and muscle strength tests, and the occupational therapist measured Indergard's heart rate and recorded observations about her breathing after conducting a treadmill test. Based on the occupational therapist's findings, Georgia-Pacific ultimately concluded that Indergard was unable to "perform the sixty-five pound lift and carry" that was a requirement of her job position and there were no other jobs she could perform at the facility. For those reasons, the company terminated her.

Indergard later filed suit in federal court claiming that the PCE constituted a prohibited medical examination under the ADA and Oregon State law. The trial court disagreed, finding that the PCE was a lawful fitness exam.

The Ninth Circuit's Holding. On appeal, the Court relied on the EEOC's Enforcement Guidance on Disability-Related Inquiries and Medical Examinations to determine whether the test was a medical examination. The EEOC's Enforcement Guidance adopted by the Court provides the following seven factors to be considered:

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
7. Whether medical equipment is used

The Court noted that the EEOC's Enforcement Guidance also provides a list of tests considered, on their own, to be medical examinations, including "blood pressure screening and cholesterol testing," and "range-of-motion tests that measure muscle strength and motor function." The Court concluded that at least four of the EEOC's factors weighed in Indergard's favor. Reversing the trial court, the Court explained that, while the purpose of the test may have been to determine whether Indergard was capable of returning to work, it involved tests and inquiries capable of revealing to Georgia-Pacific whether she suffered from a disability. Therefore, the Court concluded that the test was a medical examination and remanded the case for district court to determine if it was job related and consistent with business necessity.

Lessons for Employers

• Use the EEOC's Enforcement Guidance as a guide to determine whether a physical fitness test may be considered a medical examination under the ADA
• Disability-related inquiries and medical examinations of an employee returning to work from medical leave must be job-related and consistent with business necessity
• An employer may ask questions and/or require a medical examination if it has reason to question whether an employee's ability to perform essential job functions will be impaired by a medical condition, or whether the employee can perform the job without posing a direct threat of harm
• An employer's concerns must be reasonable and supported by objective evidence
• An employer may seek medical information to follow-up on a request for accommodation, when the disability or need for accommodation is not known or obvious, or when an employee is returning to work and the employer has a reasonable belief that his or her present ability to perform essential job functions will be impaired by a medical condition
• When employees apply for new positions under an internal competitive hiring process, they must be treated like regular job applicants. An employer may not ask any disability related questions and may not require a medical examination unless, and until, it makes a conditional job offer