Mandatory mental health counseling is a “medical examination” regulated by the Americans with Disabilities Act, according to the 6th U.S. Circuit Court of Appeals.
Therefore, a requirement that an employee undergo such counseling is subject to all of ADA’s rules and restrictions; specifically, one that prohibits employers from requiring medical exams that are not job-related and consistent with business necessity. (42 U.S.C. § 12112(d)(4)(A)). The case is Kroll v. White Lake Ambulance Authority (No. 10-2348, Aug. 22, 2012).
Facts of the Case
In Kroll, the 6th Circuit determined that an employer cannot require a worker to attend counseling without implicating ADA.
Emily Kroll, an emergency medical technician, became romantically involved with a co-worker. When she suspected he was also involved with another co-worker, arguments among the three carried over into the workplace and allegedly began to interfere with patient care and safety. Other employees also informed management that Kroll often cried while on duty and that she might be suicidal.
White Lake Ambulance Authority told Kroll in a meeting that she would need to attend counseling to keep her job. At the end of the meeting, she left her pager on her supervisor’s desk and never returned to work.
Kroll sued, alleging that White Lake violated ADA’s restrictions on medical exams.
What Constitutes a Medical Exam?
The U.S. District Court for the Western District of Michigan, Southern Division, determined that “counseling alone does not constitute a medical examination under the ADA.” Kroll appealed to the 6th Circuit, and it reversed in her favor.
Because the statute fails to define “medical examination,” the court looked to the U.S. Equal Employment Opportunity Commission for guidance.
The commission’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees defines a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” It provides a seven-factor test and states that, in some cases, the fulfillment of only “one factor may be enough to determine that a test or procedure is medical.”
The factors include:
- whether the test is administered by a health care professional;
- whether the test is interpreted by a health care professional;
- whether the test is designed to reveal an impairment or physical or mental health;
- whether the test is invasive;
- whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
- whether the test normally is given in a medical setting; and
- whether medical equipment is used.
White Lake’s mandated counseling clearly meets the first and second factors, the 6th Circuit said. “Kroll was instructed to attend counseling administered by a psychologist. Accordingly, we conclude that a reasonable jury could find that factors one and two weigh in favor of concluding that the ‘psychological counseling’ Kroll was instructed to attend constituted a ‘medical examination.’”
The requirement also fulfilled the third factor, the court said. “In this instance, based on the evidence presented by Kroll, a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect.” White Lake made clear that it was concerned that Kroll might be depressed and suicidal. “This uncovering of mental-health defects at an employer’s direction is the precise harm that [ADA] is designed to prevent absent a demonstrated job-related business necessity.”
Because the mandated counseling was likely to reveal whether Kroll suffered from a disability — regardless of whether this was the employer’s intention — there is enough evidence for a reasonable jury to conclude that the counseling amounted to a medical exam, the court said, remanding the case to the lower court.
The district court will now determine whether the medical exam was job-related and consistent with business necessity.
For additional information about leave and disability, see Thompson’s employment law library including the ADA Compliance Guide.
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