In Indergard v Georgia-Pacific Corp., the Ninth Circuit reversed summary judgment for the employer, finding that the comprehensive physical capacity examination Plaintiff was required to undergo upon returning to work after knee surgery was a "medical examination" under the Americans With Disabilities Act ("ADA"). Under the ADA, where a physical examination is determined to be a "medical examination," the employer is required to justify each aspect of the examination as job-related and consistent with business needs.
The Plaintiff in Indergard was a napkin operator who had taken three months medical leave to undergo knee surgery. Although she was cleared to return to work by her personal surgeon, Georgia-Pacific required that she undergo a physical capacity evaluation before returning. The evaluation included as part of the testing both a treadmill stress test and a range of motion test. After these tests were administered by a third-party occupational therapist, it was concluded that Plaintiff could not return to her previous position; and there were no other positions for which she was qualified.
She sued, alleging discrimination under the ADA, in that the employer had violated a provision of the ADA that prohibits it from forcing a current employee to undergo a medical exam or making inquires as to whether an employee is disabled without a showing of business necessity and job-relatedness. After summary judgment was granted at the trial court level in favor of Georgia-Pacific, the Ninth Circuit reversed, finding that the evaluation in question was, indeed, a medical examination and subject to strict scrutiny. In reaching this conclusion, it utilized the EEOC guidelines and indicated, inter alia, that taking the employee's blood pressure and heart rate by a third party was inappropriate to include in a non-medical fitness test.
The significance to employers of the Ninth Circuit's careful scrutiny of return to duty exams by reference to the seven factors of the EEOC guidelines is clear. Employers are left with a Hobson's choice. They may want to incorporate physical evaluations in order to gauge whether an employee is able to return to work after a medical leave; however, if they do so, they must be careful. Any evaluation that they choose to use must not be overreaching. It must be directly and narrowly tailored to the employee's ability to resume his or her original position. If found to be too invasive, the Court will impose a formidable burden on the employer to prove that the test is job-related and needed for the operation of the business.
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