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PHYSICAL CAPACITY (FUNCTIONALITY) TESTS: ARE THEY MEDICAL EXAMS?
Many companies require that employees take functionality exams when returning to work after an illness or injury. These exams are in theory not medical exams but tests to determine whether the employee can perform the essential elements of his job. A recent decision by the Court of Appeals for the Ninth Circuit (which covers the entire West Coast) holds that a functionality test was in fact a medical exam and, therefore, had to be "job related and consistent with business necessity." Indergard v. Georgia-Pacific Corp., 2009 WL 3068162 (9th Cir. 2009).
The plaintiff, Kris Indergard, had been on medical leave for over two years following knee surgery. In response to her request to return to work, a physical therapist was retained to provide an evaluation of the physical requirements of her job and to test her physical ability to perform the essential functions of that job. The therapist then asked Indergard to perform various physical functions relating to lifting, gait, carrying weights, and ability to place nuts and bolts in a box while kneeling.
The issue in the case was whether the test given to Indergard was a medical examination or simply an inquiry to determine whether she was capable of performing the physical functions of her job. The distinction is important because, under the Americans with Disabilities Act (ADA), a medical exam must be "job related and consistent with business necessity" while a test of physical capacity is not subject to that requirement.
The court found that the test given to Indergard was a medical exam, not simply a test of physical agility, noting that Indergard was asked about her medical history, her height and weight were recorded, and her blood pressure was taken. When testing her ability to lift weights and following treadmill tests, the therapist measured her heart rate and oxygen intake. Citing an EEOC Guidance, the court found that these medical aspects of the tests were indicative of a medical exam, not just a physical ability test, because they measured physiological response, not just her physical capabilities. The court also relied on the fact that the therapist’s conclusions were reviewed by a medical doctor; the blood pressure, heart rate and oxygen results were included in her report; and the medical tests were "capable of revealing impairments of physical and mental abilities." The court did not rule that the test was unlawful but remanded the case for a determination as to whether the test was job related and consistent with business necessity.
There was a strong dissent in this case, and some would say that this is a "California" decision which might not be followed elsewhere. Nonetheless, this is the law in the ninth circuit and time will tell whether and to what extent this approach is followed in other circuits. Companies in the ninth circuit which conduct functionality exams should understand that if a "functionality" test strays beyond assessment of physical ability to perform a job and ventures into the realm of physiological response, that test may well be regarded as a medical exam. In that case, the company will have to establish that the test was "job related and consistent with business necessity."
