Court Says Return-to-Work Exam Violation Claim May Proceed  When
an orthopedic surgeon authorized Kris Indergard to return to her
job as a mill worker at Georgia-Pacific Corp.'s Wauna, Ore.,
plant in 2005, her employer wanted to know whether she was
physically capable of performing the lifting and carrying tasks
that were part of her job. Georgia-Pacific asked Indergard to
submit to testing that would help answer that question after her
16-month medical leave. Following an intensive two-day
examination by an occupational therapist, Georgia-Pacific
decided that the answer was no and terminated her employment.
Indergard filed suit, claiming the testing was a "medical
examination" that violated confidentiality protections of the
Americans with Disabilities Act (ADA). As set forth in the ADA,
medical examinations can only be ordered by an employer if they
can be shown to be "job related and consistent with business
necessity." In late September 2009, the 9th Circuit agreed with
Indergard. In a split, 4-1 decisio