In Indergard v. Georgia-Pacific Corp., an employee was required to participate in a physical capacity evaluation (PCE) prior to returning to work after surgery. When the employee failed several parts of the PCE, she was terminated.

California's Ninth Circuit held that measuring the employee's heart rate and recording observations about breathing and fitness independently established that the PCE was a medical exam. Additionally, the exam (1) was administered by a licensed occupational therapist who interpreted the results, (2) could reveal physical and mental impairments, and (3) measured the employee's responses to various tests. Under these facts, the court concluded that the PCE was a medical exam for ADA purposes, and remanded the case to the trial court to determine whether the PCE was job related and consistent with business necessity.

Under the ADA, an employer may not require current employees to undergo medical examinations unless the exam is shown to be job-related and necessary for the business. The Equal Employment Opportunity Commission has laid out seven factors to evaluate to determine whether a test is a "medical examination" for purposes of the ADA. Not all of the factors need to be present and, in some cases, the presence of even one factor may be enough to determine that a test is a medical examination. Employers should be aware of these EEOC factors and exercise caution in crafting any tests required for injured employees returning to work:

  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 or her physiological responses to performing the task;
  6. Whether the test normally is given in a medical setting; and
  7. Whether medical equipment is used.

The employee filed a complaint for disability discrimination under the Americans with Disabilities Act (ADA) and Oregon disability law.