Appellate Court Reinstates ADA Suit over Disability Exam

September 29, 2009 ( - A challenged mandatory exam given by an employer to a disabled employee returning from leave may be declared improper after all with a ruling from a federal appellate court.

The 9 th U.S. Circuit Court of Appeals issued that decision in a suit filed by plaintiff Kris Indergard against Georgia-Pacific Corp. as appellate jurists sent the matter back to a lower-court judge to consider whether the physical capacity evaluation (PCE) Ingergard was forced to undergo was job related and “consistent with business necessity.”

U.S. District Judge Ancer L. Haggerty of the U.S. District Court for the District of Oregon also got instructions from the 9 th Circuit ruling to determine whether Indergard first exhausted non-court remedies open to her before filing a lawsuit over the matter. Haggerty had previously ruled for the employer.

Circuit Judge Alfred T. Goodwin, writing for the appellate court, explained that the appellate panel ruled that the exam given Indergard after returning from leave sparked by knee surgery was to be considered a physical exam. Given that determination, the key remaining issue still facing Haggerty was whether the exam qualified for exemptions from the Americans with Disabilities (ADA) – that it is shown to be “job-related and consistent with business necessity.”

Goodwin asserted that Georgia-Pacific had more than one motive for requiring employees returning from disability leave to undergo the physical scrutiny. “The purpose of the (exam) may very well have been to determine whether Indergard was capable of returning to work. The substance of the (exam), however, clearly sought “information about (Indergard’s) physical or mental impairments or health,” and involved tests and inquiries capable of revealing to (Georgia-Pacific) whether she suffered from a disability,” Goodwin contended.

When the matter was before the appellate court, Georgia-Pacific argued that the procedure given Indergard was not a medical examination, so it did not violate the ADA. However, the employer argued, even it was to be considered a medical exam, it was also job-related and consistent with business necessity, and therefore expressly allowed by the ADA.

Georgia-Pacific terminated Indergard in February 2006, based on a union contract provision allowing the company to fire employees who had been on leave for more than two years. She had taken the leave in December 2003 and returned in December 2005.

The 9th Circuit ruling is available here .