In Indergard v. Georgia-Pacific Corp., (— F.3d —-, C.A.9 (Or.), September 28, 2009), the Ninth Circuit United States Court of Appeals considered whether a fitness for duty examination administered by an employer was a medical examination under the Americans with Disabilities Act (“ADA”). The Ninth Circuit (with jurisdiction over California) concluded that the employer’s examination was a medical examination under the ADA.
Kris Indergard (“Indergard”) worked for a Georgia-Pacific Corp. (“GP”) mill facility from 1984 until 2006. Indergard took medical leave from 2003 to 2005 for work-related and non-work related injuries to her knees. GP requires employees to participate in a physical capacity evaluation (“PCE”) before returning to work from a medical leave.
Following Indergard’s PCE, it was determined that Indergard was not fit to return to her previously held position at the GP mill facility and that there were not any other positions available for which Indergard was qualified. Pursuant to the collective bargaining agreement, GP terminated Indergard’s employment.
Indergard eventually filed a lawsuit under the ADA. Before reaching trial, the trial court ruled in favor of GP finding that the PCE was not a medical examination and therefore did not violate the ADA.
Under the ADA, an employer cannot require a current employee to undergo a medical examination unless the examination “is shown to be job-related and consistent with business necessity.” An employer “may make inquiries into the ability of an employee to perform job-related functions.” The Court of Appeals determined that the critical question in this case was whether the PCE was a medical examination under the ADA or simply an inquiry into Indergard’s ability to perform job-related functions.
First, the Ninth Circuit concluded that standing alone, some elements of the PCE qualified as a medical examination; specifically the range of motion and muscle strength tests, the measurement of Indergard’s heart rate, and recorded observation about breathing following a treadmill test. The Ninth Circuit also considered the PCE under the Equal Employment Opportunity Commission’s (“EEOC”) seven factor test to determine if the PCE was a medical examination and concluded that at least four of the seven factors under the EEOC’s test support a finding that the PCE was a medical examination.
Next, the Ninth Circuit looked at previous decisions by other circuits and once again confirmed that the PCE was a medical examination. The Ninth Circuit ruled that although the PCE may have been designed and administered in order to determine Indergard’s ability to “perform job-related functions”, the substance of the PCE sought “information about Indergard’s physical or mental impairments or health,” and thus was a medical examination.
In conclusion, the Ninth Circuit explained that because the PCE was a medical examination and not simply an inquiry into Indergard’s ability to perform job-related functions, the trial court incorrectly ruled in favor of GP. Thus, the court ordered the case return to the trial court to determine whether the PCE, as a medical examination, was “job-related and consistent with business necessity.”
What This Means To You
Although a private sector case, Indergard will provide public sector employee associations ammunition to argue that employee(s) may not be required to undergo Independent Medical Exams (“IME”) and similar “fitness for duty” examinations. Each situation will have to be analyzed on its particular facts. Public agencies should double-check with legal counsel before mandating such exams.
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