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Ninth Circuit Says Return to Work Capacity Analysis Is ADA Medical Exam

    Client Alerts
  • October 09, 2009

Employees away from work due to serious medical problems are often required to undergo a functional capacity analysis (FCE) before returning to work.  The FCE is intended to make sure that the employee can perform the necessary job functions in a manner that will not pose an unreasonable risk to herself or to co-workers.  A recent Ninth Circuit Court of Appeals decision may give employers pause before requiring the FCE due to concerns over it being deemed an unlawful medical examination under the Americans with Disabilities Act.

In Indergard v. Georgia-Pacific Corp ., the plaintiff missed over a year of work due to serious knee problems.  When cleared by her doctor to return to work, GP required the plaintiff to undergo a FCE to determine if she could safely perform the very physical demands of her production job.  The FCE included a series of lifting, bending and strength tests, as well as measurement of heart rate and cardiovascular capacity.  The FCE vendor concluded that the plaintiff could not meet the job's physical requirements, and GP terminated her employment.  She sued under the ADA, alleging that the FCE did not accurately measure the actual job requirements, and was therefore a prohibited medical inquiry under the ADA.

The district court dismissed the complaint, concluding that the FCE was not a medical examination as defined under the ADA.  In a 2-1 decision, the Ninth Circuit reversed this opinion, remanding the case for trial.  In drawing this conclusion, the court referenced an EEOC interpretive guidance which distinguishes between medical exams and agility tests that are not required to meet the business necessity requirement.  In this case, the measurement of heart rate and lung capacity in addition to strength made this FCE a medical exam.

The dissenting judge pointed out that the GP FCE never included blood or urine analysis, and that no doctor or nurse ever examined, diagnosed or treated the plaintiff.  Using the Ninth Circuit's logic, any FCE that measures more that physical agility and strength would be a medical examination.  Any employee who fails such FCE could argue that it was an improper medical exam because it did not meet actual job needs.  Facing the threat of ADA claims, employers would be reluctant to conduct a FCE that involved more than cursory review of a returning employee's ability to safely perform the job.