A recent decision by the U.S. Court of Appeals for the Ninth Circuit should spur employers to review their current fitness-for-duty testing policies. The decision sprung from a broad reading of EEOC interpretive guidance on determining whether a test is a medical examination within the meaning of the Americans with Disabilities Act (ADA).

In Indergard v. Georgia-Pacific Corp., No. 08-35278 (Sept. 28, 2009), the court held that a physical capacity evaluation (PCE) may be a medical examination under the ADA. The plaintiff, who was approved to return to work after a lengthy medical leave, was fired after a PCE, required by her employer's policy, found that she could not do her previous job or a job on which she was eligible to bid under a collective bargaining agreement.

A licensed occupational therapist from an independent provider performed the PCE. Among other things, the therapist took down the plaintiff’s medical history, her current pain level, and use of alcohol, tobacco and assistive devices. The therapist also took her blood pressure and measured her pulse and the range of motion in her arms and legs.

In her suit, the plaintiff claimed that the PCE was an ADA-prohibited medical examination. The district court disagreed, granting summary judgment in favor of the employer. It added that, even if the PCE constituted a medical examination, it was job-related and consistent with business necessity, and thus permitted by the ADA. On appeal, the Ninth Circuit reversed, holding that the PCE constituted a medical examination, and remanded for determination of whether it was job-related and consistent with business necessity. The decision drew on the Equal Employment Opportunity Commission’s  "Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)," which lists the following factors in determining whether a test is a medical examination:

  • 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 or 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; and
  • whether medical equipment is used.

Of these factors, the court noted that the PCE was performed by a licensed occupational therapist, involved interpretation of the plaintiff’s physical performance, was capable of revealing physical and mental impairments and measured her physiological responses to physical activity through heart rate and breathing tests. The court observed that, although "[t]he purpose of the PCE may very well have been to determine whether Indergard was capable of returning to work," the PCE "clearly sought" information about physical or mental impairments and could have revealed whether she suffered from a disability, an illegal use of the test under the ADA.

This decision highlights courts' increasing scrutiny of employment qualification and fitness for duty tests. In view of the broadened definition of "disability" under the recent ADA Amendments Act, employers seeking to use such tests should proceed only after a thorough and careful review.

If you have any questions regarding this decision or other labor- and employment-related inquiries, please contact David S. Fryman, at 215.864.8105 or fryman@ballardspahr.com, or any member of Ballard Spahr's Labor, Employment and Immigration Group.


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