Employer's Fitness for Duty Exam was Proper Under ADA
By Geoffrey F. Gega
In a recent decision issued by the federal Ninth Circuit Court of Appeals, the Court in Indergard v. Georgia-Pacific Corporation examined whether or not an employer’s fitness for duty examination, conducted on an employee who had just returned to work from a leave of absence, was a lawful physical fitness test, or a prohibited medical examination under the American with Disabilities Act (ADA).
In Indergard, the employee worked in a mill and had to take a leave of absence to recover from a non-work related injury to her two knees. When the employee returned to work she presented her employer with a doctor’s note which contained physical restrictions. After being notified that she could not perform essential functions of the job, because of the weight restrictions, the employee submitted a revised doctor’s note which did not contain the weight restrictions. The employer then sent the employee to a comprehensive fitness examination which lasted two days, and included numerous tests, which did not necessarily pertain to the employee’s physical ability to perform her job. After the fitness examination, the employer concluded that the employee could not return to her former job, or any other job, and terminated her.
The Court made a finding on a single issue: whether or not the examination constituted a physical fitness exam, or an impermissible medical examination under the ADA. Generally, the ADA prohibits medical examinations of an employee/applicant to inquire as to whether the person has a disability, or to discern the nature and/or severity of a disability. The exception to this is if the medical test is “job-related and consistent with business necessity.” Employment “inquiries” such as physical agility and/or physical fitness tests are not considered medical examinations and need not meet the above requirements.
In deciding whether the examination administered here was a “medical examination,” the court relied upon a seven part test provided by the Equal Employment Opportunity Commission (EEOC). The factors were: 1) whether a health care professional administered the test; 2) whether a health care professional interpreted the results; 3) whether the test was “designed to reveal an impairment”; 4) whether the test was invasive; 5) whether the test measured the “employee’s performance of a task”; 6) whether the test was usually given in a “medical setting”; 7) whether medical equipment was used.
The Court found that most of the factors weighed in favor of the employee, and against the employer. The Court further explained that while the purpose of the test may have been to determine whether the employee was capable of returning to work, it involved tests and inquiries capable of revealing to the employer whether she suffered from a disability. Therefore, the Court concluded that the test was a medical examination, and improper unless the employer could establish that it was “job-related and consistent with business necessity.
What This Means To Employers
An employer can still require an employee to undergo a fitness for duty examination when an employee returns from a leave of absence; but the fitness for duty examination must be limited to testing the physical ability of the employee to do the job in question only. If it goes beyond that, it will not meet the EEOC’s 7-part test and it may be considered an impermissible “medical exam” under the ADA. For more information on this topic, please contact Cook Brown, LLP.