Under the Americans with Disabilities Act (ADA), employers can only require employees to undergo medical exams if the exam is job-related and necessary. The Appeals Court for the Ninth Circuit ruled a physical capacity evaluation (PCE—also known as a functional capacity evaluation) to be a medical exam, thereby possibly violating the ADA. This case is Kris Indergard vs. Georgia-Pacific Corporation.
Kris Indergard worked for Georgia Pacific (GP) and took medical leave to undergo surgery for injuries to her knees. She remained on leave until her surgeon authorized her return to work, but with permanent restrictions. GP policy required employees to participate in a PCE before returning to work.
GP contracted with Columbia Rehabilitation (“Columbia”), an independent occupational therapy provider to conduct the PCE. One of Columbia’s therapists visited the GP facility and conducted a job analysis for the Consumer Napkin Operator position, which was Indergard’s position prior to her medical leave, and for the Napkin Adjuster position, which was the next position for which Indergard was entitled to bid under the collective bargaining agreement.
Among the requirements that the therapist identified were a sixty-five pound individual lift and carry for the Napkin Operator position and a seventy-five pound lift for the Napkin Adjuster position. Columbia determined that Indergard’s permanent restrictions prevented her from participating in the PCE. Indergard provided GP with a note from her orthopedic surgeon that removed the permanent restrictions he had previously identified. GP then scheduled her to participate in the PCE. A state-licensed occupational therapist (OT) at Columbia, conducted the PCE at Columbia’s office.
On the first day of the PCE the OT recorded Indergard’s medical history and subjective reports of current pain level, use of medication, alcohol, tobacco, and assistive devices, as well as her weight, height, blood pressure, and resting pulse. She observed Indergard’s gait, balance, and posture. She measured Indergard’s range of motion and compared the results to normal limits. The OT palpated Indergard’s knees and looked for edema in her legs, and performed manual muscle testing, recording the results of Indergard’s hip flexors, knee extensors and flexors, bilateral internal and external hip rotation, and straight leg raises. Next, the OT measured Indergard’s ability to lift various amounts of weight and evaluated Indergard’s body mechanics. She then measured Indergard’s ability to carry increasing amounts of weight over a set distance, and her grip strength over varying grip widths. She measured Indergard’s strength and compared Indergard’s results to norms. Indergard then performed a “Job Simulation Task,” which required her to lift and pour five gallon buckets filled with forty-five pounds of sand. The OT then tested Indergard’s ability to place nuts and bolts in a box while kneeling with her vision obscured, and observed Indergard’s ability to climb stairs, stand, sit, kneel, squat, and crawl. Indergard walked on a treadmill and pushed a weight sled. Finally, details about Indergard’s vision, communication, cognitive ability, hearing, attitude, and behavior were recorded.
The second day of the PCE Indergard’s heart rate was measured and recorded after she performed the treadmill test, and it was noted that she required “increased oxygen” and demonstrated “poor aerobic fitness.” The results of the PCE, performed on behalf of GP, concluded that Indergard was unable to perform the sixty-five pound lift and carry that was a requirement of the Napkin Operator position. It was recommended that Indergard not return to work. The PCE results were forwarded to Indergard’s orthopedic surgeon, who agreed with the Columbia’s assessment and recommendation.
GP advised Indergard that she could not return to either position. She was told that no other positions were available for which she was qualified. GP terminated Indergard’s employment pursuant to a provision in the collective bargaining agreement that allowed GP to terminate employees who had been on leave for more than two years. Indergard filed a union grievance, which was denied. She then filed a complaint with the EEOC. The administrative investigation found no substantial evidence to support her claims. She then sued GP, alleging various claims of disability discrimination under the ADA. The district court agreed with GP that the PCE was not a medical examination and was entitled to summary judgment. Indergard appealed the decision of the district court.
The appeals court found neither the ADA nor the regulations define the term “medical examination.” Instead they established that the PCE was a medical examination by applying EEOC agency guidance.
The appeals court found that although agency guidance documents are “not controlling upon courts by reason of their authority, they do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance,” stating further that “interpretations contained in policy statements, agency manuals, and enforcement guidelines are ‘entitled to respect’ only to the extent that they have the power to persuade.”
The EEOC Enforcement Guidance provided the court with the following seven factors to be considered in determining whether a test is a medical examination:
(1) whether the test was administered by a health care professional
(2) whether the test was interpreted by a health care professional
(3) whether the test was designed to reveal an impairment of physical or mental health
(4) whether the test was invasive
(5) whether the test measured an employee’s performance of a task or measured his/her physiological responses to performing the task
(6) whether the test was normally given in a medical setting
(7) whether medical equipment was used
Utilizing agency guidance, the appeals court found Indergard’s argument that the PCE was a medical examination, to be convincing. The PCE included range of motion and muscle strength tests, and Columbia measured Indergard’s heart rate and recorded an observation about her breathing after the treadmill test. Each of these tests was found by the appeals court to be within the EEOC’s description of tests considered to be medical examinations. The post-treadmill test heart rate measurement and notation regarding Indergard’s “increased oxygen” intake and demonstration of “poor aerobic fitness” weighed heavily in favor of considering the PCE a medical exam. Measuring Indergard’s heart rate and recording observations about her breathing and aerobic fitness was found to be not only unnecessary to determine whether she could perform the task, but to be the kind of examination that EEOC Enforcement Guidance identified as inappropriate to include in a non-medical physical agility or fitness test.
The court established that the PCE was a medical examination and the summary judgment to be inappropriate. They vacated the judgment and remanded the case to the district court to determine whether the PCE was job related and consistent with business necessity.
Employers should have written procedures in place limiting testing to job-related functions and employers should make sure their vendors are following these procedures.
