The plaintiff took medical leave for knee-surgery and? was? out? for? 15? months.?? ?The? employer?s policies? required? returning? employees? to participate in a physical capacity evaluation. ?The employer contracted with a third party-provider to administer? the? evaluation.???? ?The? provider determined that the employee?s restrictions prohibited her from even participating in the evaluation? due? to? the? job?s ?lifting ?requirements. The plaintiff told the employer that the job analysis the contractor was using was inaccurate.? ?The employee?s? doctor? then? removed? the? restrictions and the employee took the evaluation.? ?The contractor concluded that the plaintiff could not perform the required lifting functions of the job, the very ones the plaintiff claimed were not accurate.??? The employer then terminated the plaintiff.? ?The plaintiff sued under the ADA claiming the evaluation was improper and that she had? been? discriminated? against? on? the? basis? of actual or perceived disability.

The district court concluded that evaluation was not a ?medical exam? under the ADA. ?The Ninth Circuit reversed, 2-1. ?The majority noted that the ADA medical examination provision applies to all employees, whether they are disabled or not. ?The ADA ?regulations ?exclude ?physical? agility? tests from the definition of medical examinations if the tests are given across the board.?? The regulations provide seven factors for deciding whether an evaluation is a medical examination. ?The majority held that the evaluation given to the plaintiff was not a physical capacity test but rather a medical examination under the ADA.

Judge O?Scannlain dissented. ?He concluded the evaluation was, in whole or in relevant part, a physical agility test. ?He viewed the evaluation as a battery of tests. ?He concluded that the plaintiff could not show that the parts of the evaluation that were arguably a medical examination had caused? the? employer? to? terminate? her employment.? ?He viewed the termination as ?merely incident to an allegedly technical violation? of the ADA?Indegard v. Georgia-Pacific Corp., — F.3d —, (9th? Cir. Sep. 28, 2009) (Goodwin, O?Scannlain, Fisher).