The Americans with Disabilities Act (aEURoeADAaEUR?) generally prohibits the medical examination of an applicant or employee as it may uncover a disability or the nature and severity of a disability. Thus, medical examinations are permitted only when the employer can demonstrate that such testing is necessary to confirm the individualaEUR(TM)s ability to perform the essential functions of the position, i.e., job related and consistent with business necessity. The same is not true for physical agility tests that evaluate only whether the applicant or employee can perform certain tasks such as lifting or carrying as required to perform his or her job duties. Physical agility and physical fitness tests are not considered medical exams under the ADA. It is often difficult, however, to discern whether a particular procedure constitutes a medical examination, or instead, may be considered a physical agility test exempt from ADA requirements.
A RECENT CASE ON WHAT CONSTITUTES MEDICAL EXAMINATIONS:
A recent 9th Circuit case has attempted to define medical examinations versus physical agility tests. In Indergard v. Georgia Pacific Corp., Case No. 08-35278 (9th Cir. 9/29/09), the 9th Circuit held that a physical capacity evaluation was in fact, a medical examination under the ADA. Kris Indergard (aEURoeIndergardaEUR?) worked for Georgia Pacific Corporation (aEURoeGeorgia PacificaEUR?) as a Consumer Napkin Operator for several years. In December 2003, she took medical leave to have knee surgery for injuries described as work-related and non-work-related. Georgia Pacific had a policy that required an employee to perform a physical capacity evaluation (aEURoePCEaEUR?) as a condition of returning to work after taking medical leave.
Georgia Pacific hired an independent outside occupational therapy provider, Columbia Rehabilitation (aEURoeColumbiaaEUR?), to conduct the PCE at ColumbiaaEUR(TM)s facility. To perform the PCE, Columbia used the job description provided by Georgia Pacific, which included a 65lbs lift and carry requirement. The PCE included the following: the evaluation of IndergardaEUR(TM)s pulse and blood pressure; range of motion and leg raise tests; the ability to lift and carry, push and pull; a job simulation test; a treadmill test with heart rate evaluation; vision, hearing and cognitive tests; and, an evaluation of aerobic fitness by observing oxygen intake.
The licensed occupational therapist who conducted the PCE concluded that Indergard had poor aerobic fitness and that she could not lift and carry 65lbs as required. The results of the test were forwarded to IndegardaEUR(TM)s doctor, who agreed that she could not return to work. Georgia Pacific then terminated IndegardaEUR(TM)s
employment based on her inability to return to work in accordance with the companyaEUR(TM)s collective bargaining agreement.
Indegard sued Georgia Pacific claiming that the PCE constituted an improper medical exam under the ADA, and that she was discriminated against based on perceived disability and a record of disability in violation of the ADA. Indegard also contended that the 65lbs lift and carry requirement was not representative of what the job actually required. Georgia Pacific responded that the PCE was a physical agility test as opposed to a medical examination, and thus, did not violate the ADAaEUR(TM)s general prohibition against medical examinations. Moreover, Georgia Pacific argued that even if the PCE qualified as a medical exam, the test was aEURoejob relatedaEUR? and aEURoeconsistent with business necessityaEUR? under the ADA. See 42 U.S.C. ?12112(d)(4)(A).
THE REGULATIONS AT ISSUE:
Generally, the ADA prohibits medical examinations of employees or applicants to inquire as to whether the person has a disability or to discern the nature and/or severity of a disability. 29 C.F.R. ?1630.13. Medical examinations may, however, be permitted under an exception to this rule for employees and individuals who have received a bona fide offer of employment if the medical test is aEURoejob-related and consistent with business necessity.aEUR? 29 C.F.R. ?1630.14(c). This exception requires proof that the medical exam is designed to evaluate only the essential functions of the job at issue as they are performed on a daily basis.
Employment aEURoeinquiriesaEUR? such as physical agility and/or physical fitness tests are not considered medical examinations and need not meet the above requirements. Such inquiries may be used at the pre-employment as well as post-employment stages to verify that an individual can perform the physical demands of the job. 29 C.F.R. 1630.14.
As the Indergard case illustrates, this distinction is not always easy because certain tests will be considered medical procedures under the ADA, but the job-related requirement has not been satisfied. EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations outline seven factors to be considered in deciding if a test constitutes a medical examination.
1. Whether the test is administered by a health care professional;
2. Whether the test is interpreted by a health care professional;
3. Whether the test is designed to reveal an impairment of physical or mental health;
4. Whether the test is invasive;
5. Whether the test measures an employeeaEUR(TM)s performance of a task or measures his/her physiological responses to performing the task;
6. Whether the test normally is given in a medical setting; and
7. Whether medical equipment is used.
See http://www.eeoc.gov/policy/docs/guidance-inquiries.html (aEURoeEEOC GuidelinesaEUR?). The EEOC Guidelines provide that certain tests such as those measuring blood pressure, blood and urine screening, range of motion tests, lung function tests and diagnostic procedures such as x-rays qualify as medical examinations under the ADA. In contrast, physical fitness and agility evaluations, tests to determine the current illegal use of drugs and psychological tests that measure personality traits such as honesty are not considered medical examinations.
BACK TO THE CASE AND THE COURTaEUR(TM)S RATIONALE:
The court in Indergard concluded that the PCE was a medical examination under the ADA, but that the employer had failed to show that the PCE met the job-related and consistent with business necessity exception to the general prohibition against such tests.
First, the PCE was conducted by a health care professional (a licensed occupational therapist) in a healthcare setting, and included the evaluation of IndergardaEUR(TM)s heart rate, blood pressure and pulmonary (breathing) function, which were exactly the sort of tests that the EEOC has stated are medical examinations. These tests went beyond a simple evaluation as to whether Indergard could perform the physical demands of the job. Second, Georgia Pacific could not show the necessity of such a broad range of testing when it simply could have given Indergard a physical requirements test to determine if she could fulfill the physical demands of the job.
The 9th Circuit noted that other jurisdictions have also had difficulty discerning what constitutes a medical examination under the ADA. For example, in Medlin v. Rome Strip Steel Co., 294 F. Supp.2d 279 (N.D.N.Y. 2003), the court considered a case in which an employee was required to undergo a functional capacity evaluation after returning from medical leave for a back injury. The test was designed to determine whether he could safely perform his job as a hot role slitter setup, but included a heart rate profile to determine his ability to perform the required length of repetitive activity. The court was unsure as to whether this qualified as a medical examination, but concluded that it was job related and consistent with business necessity in any event.
Therefore, if there is any doubt about a particular test, particularly if it is conducted by a healthcare professional and/or measures physiological functions such as heart rate or blood pressure, it is prudent to evaluate it as a medical test and make sure the ADA requirements are met. It is also important to evaluate the actual physical requirements of the particular position, rather than relying on job descriptions that may be out of date or incorrect.
WHAT IS THE EFFECT OF THE GENETIC INFORMATION NONDISCRIMINATION ACT OF 2008 (aEURoeGINAaEUR?) ON THESE REGULATIONS?
GINA will become effective for employers on November 21, 2009. It prohibits secret genetic testing of employees and protects the privacy of any genetic information obtained. While ADA federal regulation 29 C.F.R ?1630.14 permits a medical history as part of a medical examination that meets the job-related and consistent with business necessity requirement, GINA will alter this regulation.
Under GINA, an employer may not request, require or purchase genetic information of an employee or of a family member of an employee (defined as individuals within 4 degrees of relationship).
Genetic information includes not only a genetic test, but also a family memberaEUR(TM)s genetic test and/or a family history of disease. Accordingly, beginning on November 21, 2009, employers will no longer be able to inquire about an employeeaEUR(TM)s medical history as part of any medical examination because those inquiries will now be considered impermissible requests for genetic information under GINA.
WHAT ABOUT FITNESS FOR DUTY CERTIFICATIONS UNDER THE FMLA?
Employers may require that an employee returning from leave under the Family and Medical Leave Act (aEURoeFMLAaEUR?), which was taken for his or her own serious health condition, submit a fitness-for-duty certification to confirm that he or she can perform the essential functions of the job. These certifications must comply with the ADAaEUR(TM)s requirements for medical examinations, i.e., that the test is job-related and consistent with business necessity. See C.F.R. ?825.312 (a) (b) & (h). Therefore, the company must provide to the employee an accurate list of the essential functions of the job so that the healthcare provider may state whether or not the returning individual will be able to perform those necessary functions. Although the 9th Circuit did not have to decide the issue, the employee in Indergard also argued that the 65lbs lift and carry requirement did not accurately represent the essential functions of her position at the company.
An employer may contact the healthcare provider for clarification or to authenticate the certification; however, the company may not delay the employeeaEUR(TM)s reinstatement and may not seek a second or third opinion on the fitness-for-duty certification provided. The FMLA does not authorize independent medical examinations (aEURoeIMEaEUR?) to investigate an employeeaEUR(TM)s fitness-for-duty upon return from FMLA leave. Mahoney v. Ernst & Young, LLP., 487 F. Supp.2d 780 (S.D. Tex. 2006). In Mahoney, a former Ernst & Young employee asserted FMLA interference and retaliation claims after she was required to submit to an IME.
Although Ms. Mahoney had submitted a return to work certification from her doctor, the company, who had observed Ms. MahoneyaEUR(TM)s emotional instability, did not agree with the doctoraEUR(TM)s conclusion and sought a second opinion through an IME. In addition to the fact that the FMLA does not authorize IMEs, the company did not allege that the IME met the job related aEUR" business necessity component of the ADA, and therefore, could not meet the exception to the prohibition against such tests.
As noted by the Texas Court of Appeals in Mahoney, other states have concluded that an exam may be allowed without violating the FMLA when state regulations mandate that particular fitness for duty requirements be met. See Cooke v. C. Bean Transp., Inc., 72 Fed. Appx. 740, 744 (10th Cir. 2003) (Department of Transportation regulations required fitness for duty exam for employees returning to work after leave); Porter v. U.S. Alumoweld Co., 125 F.3d 243, 247 (4th Cir. 1997) (exams may be permitted if requirements of ADA are satisfied). In these instances, the ADAaEUR(TM)s job related and consistent with business exception was satisfied.
Finally, it is important to remember that an employee returning from FMLA leave may request a reasonable accommodation that would enable that individual to perform the essential functions of his or her position. In those instances, the other provisions of the ADA may apply and should be considered as part of the individualaEUR(TM)s return-to-work assessment.
WHAT HAVE WE LEARNED?
Employers can request that an employee perform a basic simulation test to demonstrate that he or she can safely perform the essential functions of a particular job, such as lifting and carrying for example. However, when a test is conducted by a health professional or involves the evaluation of physiological changes, it should be considered a medical test. In that case, the employer should be ready to defend the medical test by demonstrating that the test is job related and consistent with business necessity. Moreover, obtaining the job description alone may not be sufficient. What is important is the true daily requirements of the job. Therefore, employers should review job descriptions periodically, and certainly prior to conducting any medical examination, to make sure the essential functions of the job are reflected accurately.
The information contained in this article is not designed to address specific situations, and does not include rules or regulations that apply to all states. If you have questions concerning this topic, you should consult with legal counsel of your choice to obtain advice on various fact specific matters.
Robin Foret is the Managing Partner of The Foret Law Firm in Dallas, Texas, and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization. As a former in-house attorney for The Travelers, Robin Foret has substantial litigation experience in the insurance defense context with an emphasis on labor and employment issues. texaslaborlaw@yahoo.com
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