We recommend that employers conduct pre-hire and return to work “fit for duty” exams. To balance the employers’ need to know with the employee’s right to privacy and disability protection, the EEOC issues guidance in Enforcement Guidance on Disability-Related Inquiries and Medical Examinations. In the case of Indergard v. Georgia-Pacific Corp. the 9th circuit helped clarify the distinction with physical agility exams which are not subject to the guidelines.
Determining whether a test is a medical examination depends on these factors:
- Whether the test is administered by a health care professional * Whether it is interpreted by a health care professional
- Whether it is designed to reveal an impairment of physical or mental health
- Whether it is invasive
- Whether it measures an employee’s performance of a task or their physiological responses to performing the task
- Whether it is normally given in a medical setting
- Whether medical equipment is used
The EEOC Enforcement Guidance states that, although in some cases a combination of factors might be relevant in determining whether a test is a medical examination, in “other cases, one factor may be enough to determine that a test or procedure is medical.” It then provides a list of tests that are considered medical examinations, including “blood pressure screening and cholesterol testing” and “range-of-motion tests that measure muscle strength and motor function.”
The EEOC Enforcement Guidance states that certain employer-required tests are generally not medical examinations – including physical agility tests, which measure an employee’s ability to perform actual or simulated job tasks, and physical fitness tests, which measure an employee’s performance of physical tasks, such as running or lifting – as long as these tests do not include examinations that could be considered medical (e.g., measuring heart rate or blood pressure).
In the Indergard case, the court ruled that the employer did have to comply with Medical Examination guidelines. Click here to read the case.