The Americans with Disabilities Act (“ADA”) significantly limits an employer's ability to require employees to undergo medical examinations and provide medical information.  Medical examinations and medical inquiries are permissible under the ADA only if they are "job-related and consistent with business necessity."  Until recently, the term “medical examination” was largely undefined in the ADA itself, its implementing regulations and court decisions.  The EEOC had adopted guidance on what constitutes a medical examination, but that guidance was not necessarily controlling on this issue.   As such, employers were left to wonder whether physical capacity evaluations (“PCEs”) and functional capacity evaluations (“FCEs”), which employers generally require when an injured employee is returning to work after an injury or illness, were “medical examinations” under the ADA. 

On September 28, 2009 the Ninth Circuit U.S. Court of Appeals (which encompasses Arizona, California, Idaho, Montana, Nevada, Oregon and Washington) provided further guidance on how to determine what constitutes a "medical examination," specifically adopting the EEOC guidance on this issue.  In Kris Indergard vs. Georgia-Pacific Corp., the Ninth Circuit set forth seven factors that will be considered when determining whether an inquiry regarding an employee’s ability to perform the functions of his or her position will be considered a “medical examination.” The seven factors are:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment of physical or mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting;

(7) whether medical equipment is used.

Based on the Ninth Circuit’s holding, employers must be aware that physical examinations conducted by a licensed healthcare provider will likely be considered a medical exam and therefore each element of the inquiry must be job-related and consistent with business necessity.  For example, an employer who needs to know if an employee can comply with a stated lifting requirement of 50 pounds does not also need to know that employee’s blood pressure or cholesterol level unless the employer can show that those elements of the inquiry are job-related and consistent with business necessity. Thus, employers need to ensure that the scope of their inquiry is appropriately limited. 

The Court further noted that agility tests administered by managers or supervisors will generally not be considered "medical examination". 

Following this decision, employers should:

*              Review the elements of any physical capacity evaluations (“PCEs”) and functional capacity evaluations (“FCEs”) to determine whether each element that is part of the inquiry is job-related and consistent with business necessity;

*              Coordinate with the healthcare provider who conducts the PCE to determine the appropriate scope of the inquiry and the subsequent report to the employer;

*              Ensure that managers and supervisors or other employees who conduct agility tests or other basic physical assessments understand the scope of the permissible inquiry.

For further information or to review your company's policies and procedures pertaining to the appropriate scope of medical examinations under the ADA, please contact:

Natasha J. Baker at  nbaker@chklawyers.com  or Kate Dittrick at kdittrick@chklawyer.com in the firm’s San Francisco office or Kirstin Muller at kmuller@chklawyers.com in the firm’s Santa Monica office.