Court Rules Physical Agility Test Was An Illegal Medical Exam Under ADA

11/03/2009 / Christopher J. Harristhal and L. Kathleen Harrell-Latham

While the Americans With Disabilities Act (ADA) and Minnesota Human Rights Act (MHRA) restrict the use of medical examinations to limited circumstances, employers have had much latitude under federal law to use physical agility tests to assess the ability to perform a job. On September 28, 2009, the Ninth Circuit Court of Appeals concluded that what the employer thought was a lawful return to work agility test was actually a medical exam and needed to prove that the test was consistent with business necessity to avoid liability under the ADA in Indergard v. Georgia Pacific Corporation, 582 F.3d 1049 (9th Cir. 2009).

Facts of the Case
Kris Indergard (“Indergard”) worked at a mill facility of the Georgia-Pacific Corporation (“GP”) for over twenty years. After two years on medical leave from her GP position, Indergard was authorized by her doctor to return to work with certain physical restrictions.

GP required all employees returning to work from medical leave to first undergo a physical capacity evaluation. GP contracted an independent occupational therapy provider to conduct these evaluations. The evaluation was two days long and comprised of various tasks to permit the administrator to test and observe the employee’s motion, lifting, aerobic, and other physical capacity. After failing the test, Indergard challenged the lifting requirements as being inconsistent with how the job was actually performed and returned to her doctor for removal of her physical restrictions. The tests remained unchanged by the provider and Indergard underwent the examination for a second time without her previous restrictions. GP’s provider again recommended that Indergard not return to work and also sent the results to Indergard’s personal physician who concurred with the results. After failing the test for a second time, GP informed Indergard that she could not return to her position and terminated her employment.

As a result of her termination, Indergard sued GP for various claims of disability discrimination. Specifically, Indergard alleged that GP relied upon the discriminatory examination for her termination and that she was subject to disparate treatment due to her disability. GP disputed that the evaluation was a medical examination subject to the requirements of the ADA, but, also argued that even if the examination was “medical” it was permissible under the ADA because it was job related and a result of business necessity.

Ninth Circuit Ruling
In reversing the lower court’s decision, the Ninth Circuit relied heavily upon the guidelines of the EEOC and found that while certain components of the evaluation were independently permissible, in the aggregate, the evaluation constituted a prohibited medical examination. For example, the provider’s measurement, observation, and recording of the employee’s heart rate, breathing, and her aerobic fitness after the treadmill test—an otherwise appropriate physical agility test—exceeded the scope of an employer’s permissible inquiry into whether the employee could perform the job. The court also pointed to the provider’s recording of the employee’s subjective reports of her current pain level, use of medication and assistive devices, communication, cognitive ability, attitude, and behavior during the course of various other components of the evaluation. Further, the court found it particularly troublesome that the administrator then proceeded to send these additional observations and recommendations to the employee’s treating physician. Ultimately, the Ninth Circuit concluded that the evaluation was a medical examination due to the nature of the administrator’s observations which exceeded the narrow realm of whether the employee could perform the job and delved into the employee’s general physical condition.

Impact of the Decision
Fortunately for Minnesota employers, and others outside the Ninth Circuit Court of Appeals, the decision is not binding in other jurisdictions. The Ninth Circuit is generally considered something of an aberration in the area of employment law, and hands down more pro-employee decisions in the discrimination context than any other jurisdiction. Nonetheless, employers would be well advised to critically consider the nature of any exams administered to applicants and injured workers to ensure they are compliant with the applicable laws. This may mean reviewing the tests to avoid challenge as a medical exam, or double checking the circumstances in which medical exams are allowed to avoid running afoul of the ADA, MHRA, or the laws of other states. Keep in mind, however, that the MHRA has a slightly different framework than the ADA. The MHRA prohibits employers from requesting that applicants undergo a “physical examination” prior to offering employment unless it is based upon a “bona fide occupational qualification.” Minn. Stat. § 363A.08 subd. 4.

This decision highlights the precision in which these tests must be developed and implemented so that employers may stave off liability and maintain a safe working environment. Larkin Hoffman will continue to monitor this issue for any further refinements of the standards utilized in evaluating the propriety of an employer’s ability to utilize medical examinations. The attorneys in Larkin Hoffman’s Business Litigation Department have substantial experience in this area and are able to assist with any questions about this case or any other employment law related questions.