Court Says Return-to-Work Exam Violation Claim May Proceed

When an orthopedic surgeon authorized Kris Indergard to return to her job as a mill worker at Georgia-Pacific Corp.'s Wauna, Ore., plant in 2005, her employer wanted to know whether she was physically capable of performing the lifting and carrying tasks that were part of her job. Georgia-Pacific asked Indergard to submit to testing that would help answer that question after her 16-month medical leave. Following an intensive two-day examination by an occupational therapist, Georgia-Pacific decided that the answer was no and terminated her employment.

Indergard filed suit, claiming the testing was a "medical examination" that violated confidentiality protections of the Americans with Disabilities Act (ADA). As set forth in the ADA, medical examinations can only be ordered by an employer if they can be shown to be "job related and consistent with business necessity." In late September 2009, the 9th Circuit agreed with Indergard. In a split, 4-1 decision, the court remanded Indergard v. Georgia-Pacific to the trial court to determine whether the exam met that definition.

"The question now is whether they can defend that procedure as being job related and consistent with business necessity, which is a problematic, amorphous standard for employers to get their arms around," says Jackson Lewis Partner Francis Alvarez.

The problem, as he and other lawyers point out, is that there is little case law to help to define the factors necessary to label an examination "medical." Making note of this dearth, the 9th Circuit based its conclusion in large part on nonbinding Equal Employment Opportunity Commission (EEOC) guidelines. The EEOC states that "factors to be considered" in identifying when an exam is medical include whether medical personnel and medical equipment are involved, whether the test is invasive and whether it is designed to reveal an impairment of physical or mental health.

Broad Interpretation

In ruling that Georgia-Pacific did subject Indergard to a medical examination, which requires them to show it was consistent with business necessity, the 9th Circuit helped to provide that definition--at least in that jurisdiction.

"It's a broad interpretation of what a medical exam is under the ADA," says Nixon Peabody Partner Jeffrey Tanenbaum. "This now causes employers to take a more careful look at what their providers are doing in terms of fitness-for-duty and job-function tests."

One of the case's curious aspects is that Indergard didn't have any legal or administrative success whatsoever until the 9th Circuit ruled in her favor. A magistrate judge at the district court level granted summary judgment for Georgia-Pacific; after Indergard appealed, the district court adopted the magistrate judge's findings and granted Georgia-Pacific's motion for summary judgment.

However, lawyers say the facts of the case nevertheless suggest that the exam may have gone too far.

"You could say that the court broadened the definition of 'medical exam,' but if you look at the facts of the case--it was an exam lasting two days that checked heart rate and blood pressure--it really was quite extensive," says Bingham McCutchen Partner Wendy Lazerson. "To boot, it was conducted not by someone in the workplace, but by an occupational therapist. There definitely was a quasi-medical connotation to it."

Tanenbaum agrees with Lazerson. "As an employer, when you start reading through the facts, you go, 'uh-oh' because you see a lot of medical-type tests being done," he says. "In essence, what looks like a medical history is being taken."

Guidance Needed

Alvarez says one of the messages of the Indergard ruling for employers is to closely consider whether some of their examinations are necessary.

"The question a lot of employers have to ask themselves after this is: 'How much information am I really committed to obtaining?' If they're nibbling around the edges to try to get information in a broad range of circumstances but they're trying not to go so far as to cross the line into a medical examination, this decision should give them some reason to stop and reconsider what they're doing," he adds.

When employers do find it necessary to conduct physical tests, they should be careful about who they use to do the testing and make sure they don't go too far.

"You need to make it clear that you want it to be a job simulation," Tanenbaum says. "You want it to be a determination as to whether or not the person can safely perform his or her duties, but you don't want it to be a medical exam."

Even though courts other than the 9th Circuit have done much to define "medical exams" under the ADA, Alvarez contends there will be increasing litigation in this area because recent ADA amendments expand the circumstances under which people can qualify as disabled. He predicts this will trigger more claims from people with temporary injuries.

"My hope is that the courts and/or the EEOC will provide further guidance on what it means [for an exam] to be 'job related' or 'consistent with business necessity,'" he says. "This would give employers the green light to do the right thing and make meaningful evaluations about someone's ability to do the job safely without fear that they're going to be dragged into costly ADA litigation."

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