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Evaluating employee before return to work? Know difference between medical, agility tests

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Under the ADA, employers aren’t allowed to subject employees to medical tests unless they can prove that the examinations are job-related and consistent with business necessity. However, they can ask employees to perform agility tests.

The line between the two is difficult to find. But get it wrong, and you may have an ADA discrimination case on your hands.

Recent case: Kris Indergard worked in a Georgia-Pacific paper products plant until she took medical leave for surgery to her knees caused by the job and other nonwork-related injuries.

When she was ready to return to work, Georgia-Pacific required her to undergo a fitness-for-duty test to see whether she could still perform the essential functions of her job and another position she might be eligible to move into under the plant’s collective-bargaining agreement.

The company sent Indergard to a state-licensed occupational therapist for what it said was an agility test—not a medical test. During the exam, the occupational therapist measured Indergard’s weight, height and blood pressure and pulse. The therapist measured range of motion, had her lift various weights, grip things and made her lift and empty pails of sand. Indergard also climbed stairs, sat, kneeled, squatted and crawled.

Finally, she had to walk on a treadmill for 20 minutes at a pace of 2.8 mph while the therapist recorded her heart rate and oxygen usage. The occupational therapist concluded, among other things, that Indergard demonstrated “poor aerobic fitness” even though she was able to complete the walk.

Georgia-Pacific then fired Indergard because she allegedly wasn’t fit to return.

She sued, alleging she had been forced to undergo a medical examination that was not job-related and consistent with business necessity.

Georgia-Pacific argued that all the testing was merely designed to assess her agility, and was not a medical test.

The 9th Circuit Court of Appeals disagreed. It looked at guidance from the EEOC on what constitutes a medical test (see box below) and concluded that things like measuring blood pressure and oxygen levels goes beyond simply seeing whether the employee can perform a task. The court said such measures try to determine whether the employee has a disability. It ordered a trial.

Georgia-Pacific will now have to show that the testing was job-related and required by business necessity. (Indergard v. Georgia-Pacific, No. 08-35278, 9th Cir., 2009)

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