Physical Agility Tests Can Be Deemed Medical Examinations Under the Americans with Disabilities Act ("ADA")

December 30, 2009 Advisory

When does a physical agility test measuring an employee's ability to perform actual or simulated job tasks qualify as a medical examination under the ADA? The question is important for employers because, if the test is deemed a medical examination, the ADA mandates that it be job-related and consistent with business necessity. Recently, the U.S. Court of Appeals for the Ninth Circuit addressed this question in Indergard v. Georgia-Pacific Corp., 582 F.3d 1049 (9th Cir. 2009).
In Indergard, the plaintiff, a paper mill worker, took medical leave to undergo knee surgery and was eventually cleared to work with restrictions. After the restrictions were lifted, Georgia-Pacific ("GP") referred the plaintiff to an occupational therapist for a physical capacity evaluation ("PCE") in order to determine whether she could return to work in either of two available positions. Over the course of two days, the therapist recorded the plaintiff's medical history, use of medication, and subjective reports of her pain level; evaluated the plaintiff's range of motion in her arms and legs, checked her knees, and assessed her balance, posture, and ability to lift various amounts of weight; had the plaintiff walk for twenty minutes on a tgreadmill; measured the plaintiff's heart rate and blood pressure after a second treadmill test, and noted that the plaintiff had poor aerobic fitness and required increased oxygen. Ultimately, the therapist concluded that the plaintiff was not qualified for either available position because she could not meet the 65-pound lifting requirement. As a result, GP terminated the plaintiff's employment.