Court: Tests on injured workers violate ADA

A new federal court ruling could put Arizona companies at risk when they test injured employees to see if they are able to return to work.

In a split decision, a three-judge panel of the 9th U.S. Circuit Court of Appeals said tests performed by Georgia-Pacific Corp. on a returning worker qualified as a "medical examination." That, the majority concluded, ran afoul of a provision of the Americans With Disabilities Act that bars medical exams designed to identify and screen out those with disabilities.

The judges rejected arguments by the employer that its actions fell within an exception that permits job-related tests to determine if the person is capable of performing the required tasks.

That conclusion drew fire in a dissent by Judge Diarmuid O'Scannlain. He said the majority decision defies a "common sense" reading of the ADA.

O'Scannlain said the decision, unless overturned, could hurt the ability of companies to ascertain if employees can, in fact, do the work.

"Given that physical agility tests by their very nature tend to screen out people with certain disabilities, I see no way for employers to conduct such tests without inviting ADA lawsuits from those who fail them," the judge wrote.

The case involves Kris Indergard, who was a Georgia-Pacific employee when she took medical leave in 2003 to undergo surgery for work-related and non-work-related injuries to her knees. She remained on medical leave for more than a year until her orthopedic surgeon authorized her return.

Georgia-Pacific policy required workers who had been on medical leave to participate in a "physical capacity evaluation" before returning. The company then contracted with an independent occupational therapy provider.

The physical therapist identified the demands on those in the positions for which Indergard was eligible, including the amount of weight a worker was required to lift and hold and the types of movements the position required.

Over two days, the therapist ran a battery of tests and exams, including blood pressure and resting pulse. She recorded the results of flexing tests and measured Indergard's ability to lift weights as well as to push and pull in various postures.

The therapist also put Indergard on a treadmill and measured her subsequent pulse rate, noting that Indergard required "increased oxygen" and demonstrated "poor aerobic fitness." Ultimately, the therapist concluded that Indergard was unable to lift the 65 pounds necessary for one job or the 75 pounds for the other.

Based on that, the company fired her.

Indergard sued, contending there was no reasonable basis for her to have to undergo the physical capacity evaluation. She specifically said the evaluation was an improper medical exam prohibited by ADA and that she was the victim of discrimination because of an actual or perceived disability.

A federal magistrate threw the case out, concluding the evaluation was not a medical exam. But appellate Judge Alfred Goodwin, writing the majority ruling, said that was wrong.

Goodwin said range of motion and muscle strength tests are medical exams, as are checking her heart rate and recording observations about her breathing.

He also said the physical therapist, in making recommendations to the company, was interpreting the results of the tests. And one of the guidelines used by the Equal Employment Opportunity Commission to determine if something is a medical test is whether the results are interpreted by a health care professional.

"The purpose of the physical capacity evaluation may very well have been to determine whether Indergard was capable of returning to work," Goodwin wrote. "The substance of the physical capacity evaluation, however, clearly sought information about Indergard's physical or mental impairments or health, and involved tests or inquiries capable of revealing to Georgia-Pacific whether she suffered from a disability."

O'Scannlain said this conclusion puts companies in a difficult situation when faced with returning workers who may not be capable of doing the job they once performed. He said if companies don't test for physical capability, they run the risk that the employee will end up being injured.

The decision does not end the case. Instead, it sends it back to the magistrate, who will now determine if the evaluation, even though it is a medical examination, is still permitted because it is job-related and "consistent with business necessity."

While Georgia-Pacific is not an Arizona company, the case still affects employers here. That's because rulings from the 9th Circuit cover - and are binding in - nine states, including Arizona.