• An often asked question by employers is whether they can require an injured worker following a work-related injury to undergo a medical exam before returning the employee to regular or modified duties.
• The Ninth Circuit Court of Appeals examined this issue in Indergard v. Georgia Pacific Corp. and applied a very liberal interpretation of the EEOC guidelines.

Brief Facts

Indergard worked at Georgia-Pacific Paper Mill when she took medical leave for surgery for work-related and non-work-related injuries to her knees.  15 months later, she returned to work with a doctor's note.

The company required that Ms. Indergard submit to a Physical Capacity Evaluation (PCE) before returning to work from medical leave.  A detailed description of the examination is contained in the 9th Circuit's Opinion.

Following the examination, the occupational therapist determined that Ms. Indergard was unable to meet the lifting requirements of her position.  She was terminated after two years pursuant to terms of a collective bargaining agreement.  She then alleged various claims of disability discrimination under the ADA, arguing the PCE was an improper medical examination.

ISSUE:  Was a medical examination conducted?  Was it proper?

A. ADA Rules for Examinations:  Prohibited Examinations and Inquiries.

With some exceptions, ADA generally prohibits employers from requiring an employee to submit to a medical examination, and also prohibits inquiries into whether an individual has a disability or the nature or severity of a disability.  Examinations and inquiries are allowed if shown to be "job related and consistent with business necessity."

In the Indergard case, the key issue was whether the physical capacity evaluation was a medical examination under the ADA or simply an inquiry into whether Ms. Indergard was capable of performing the job related functions of the position she was qualified to return to after her medical leave.

B. What is a "medical examination"?

Neither the ADA nor the implementing regulations define the term "medical examination," but the EEOC does provide some guidelines.  They are:

• Ability to Perform.  Employers are permitted to make inquiries or require medical examinations (fitness for duty exams) when there is a need to determine whether an employee is still able to perform the essential functions of his or her job.
• Physical Agility:  Employers may use physical agility tests, which are not medical examinations, and these may be given at any point in the application or employment process.
• Across the Board Evaluation:  Physical agility tests must be given to all similarly situated applicants or employees regardless of disability.

On the other hand,  a medical examination is a "procedure or test that seeks information about the individual's physical or mental impairments or health."  According to the EEOC, 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 task, 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).

There are several factors the EEOC uses to consider whether a test is a medical examination and they include:

1. Whether the test is administered by a healthcare professional.  In the Indergard case, the court concluded that a licensed occupational therapist was a healthcare professional.
2. Whether the test is interpreted by a healthcare professional.  The therapist interpreted test results and recommended Indergard not return to work.
3. Whether the test is designed to reveal an impairment of physical or mental health.  The court concluded that the broad reach of the test was capable of revealing impairments of Ms. Indergard's physical and mental health, particularly in light of the recommendations of Indergard's subjective complaints of her current pain level, using medication and assistive devices, as well as communication, cognitive ability, attitude, and behavior.
4. Whether the test is invasive.  In Indergard, there were no invasive tests performed.
5. Whether the test measures an employee's performance of the task or measures his/her physiological responses to performing the task.  In this case, the test measured heart rate, breathing and other physiological responses.
6. Whether the test normally is given in a medical setting.  The test was administered in the therapist's office.
7. Whether medical equipment is used.  Here, the only equipment used was a blood pressure cuff.  The court concluded that this was a medical examination, because in addition to motion and muscle strength tests, the occupational therapist measured her heart rate and recorded an observation about her breathing after the treadmill test.  The court particularly focused on the treadmill test and observed that the testing went too far.

• The court remanded the matter back to the trial court to determine whether the PCE was job related and consistent with business necessity.

ANALYSIS

The court is willing to create a very broad definition of what constitutes a "medical examination."  Employers risk straying into "medical examination" territory any time the examination does more than simply observe whether the employee can perform job functions.

Every employer should have a written protocol for return-to-work examinations that states "the only thing that examination is to explore is whether the injury or illness that caused the person to be out of work has healed to the point that they are now capable of performing the function."

Employers also should provide a written direction to healthcare providers that conduct the tests and any insurer that requests them to assure compliance with the employer's policy.

Employer should carefully limit the scope of fitness for duty examinations.  A general physical examination can violate EEOC regulations.  If such examinations are to be conducted by outside professionals, such as an occupational therapist as in the Indergard case, then be sure that the professional is well aware of the ADA restrictions.

Note, however, that a medical examination is not per se illegal.  Medical examinations are permissible where "it is shown to be job related and consistent with business necessity."

© Copyright 2009 Pearlman, Borska & Wax. Reprinted with permission. This article was written by Maureen O'Hara, Senior Associate, Pearlman, Borska & Wax.