A physical capacity evaluation administered to an employee returning from disability leave was an improper medical exam, a divided Ninth Circuit rules, allowing the case to proceed under the Americans with Disabilities Act.
A union employee was required to undergo the physical evaluation after a return from almost two years of medical leave. In addition to the range of motion and muscle strength tests, the employee was required to provide her medical history, weight, height, blood pressure, take a treadmill test after which her heart rate was measured, and her breathing was observed. The occupational therapist administering the tests noted that the employee required “increased oxygen” and demonstrated “poor aerobic fitness,” and concluded she was unable to perform the lifting requirements of the positions she was bidding for. After the employee’s orthopedic surgeon agreed with the assessment, she was terminated pursuant to the collective bargaining agreement. She filed suit against the company, charging that the evaluation was an improper medical exam and the company had discriminated against her because of a perceived disability or record of disability in violation of the ADA.
A lower court had rejected her suit, finding that the physical evaluation did not constitute a medical exam. In a 2-1 decision, the Ninth Circuit rules that the lower court erred in its finding.
“The post-treadmill test heart rate measurement and notation regarding [the claimant’s] ‘increased oxygen’ intake and demonstration of ‘poor aerobic fitness’ weigh heavily in favor of considering the PCE a medical exam,” the Court says. Not only was this “unnecessary to determine whether she could perform the task, but is also the kind of examination that the EEOC Enforcement Guidance identifies as inappropriate to include in a non-medical physical agility or fitness test,” the Court notes. The case is remanded back to the district court to determine whether the physical capacity evaluation was job related and consistent with business necessity, and to determine whether the employee had exhausted her administrative remedies. Indergard v. Georgia-Pacific Corporation
