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Summit Law Group, and Mark Busto, Attorney, Sebris Busto James, to bring you the "HR Advisor" article series on employment and labor law issues
affecting Washington local governments. The "HR Advisor" will feature
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Indergard v. Georgia-Pacific: Drawing the Line Between Physical Fitness Tests and Medical Examinations Prohibited by the ADA
By Mark Busto
Sebris Busto James
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").
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 are disabled under the ADA.
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.
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
Circuit's Holding. On appeal, the Court relied on the EEOC's
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:
- Whether the test is administered by a health care professional
- Whether the test is interpreted by a health care professional
- Whether the test is designed to reveal an impairment of physical or mental health
- Whether the test is invasive
- Whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task
- Whether the test normally is given in a medical setting
- 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
inquiries and medical examinations of an employee returning to work
from medical leave must be job-related and consistent with business
- 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
- 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
|Bruce Schroeder is an employment / litigation attorney with
Summit Law Group, Seattle. Bruce's practice is concentrated on
representing management in the entire range of employment law matters.
Janice Corbin is a partner with
Sound Employment Solutions, LLC, Seattle. Janice has over 15 years of
human resources experience with the Seattle Police Department and the
International Harvester Truck Company and has worked in the law enforcement
field for over 22 years.
Janet May is a partner and attorney with
Sound Employment Solutions, LLC, Seattle. Janet has over ten years of
experience in the labor and employment law field, and has represented both
management and labor. More.
|Mark Busto, Attorney with Sebris Busto James, Bellevue, is a seasoned employment law counselor and litigator with a strong professional background in labor-management relations. He has represented employers in discrimination cases before judges and juries in both state and federal court and has arbitrated many labor and employment matters. More.
*The Articles appearing in the "HR Advisor" column
represent the opinions of the authors and do not necessarily reflect those of
the Municipal Research and Services Center.