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.

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."

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