The Americans with Disabilities Act (ADA) prohibits a covered employer from requiring an employee to undergo a “medical examination,” unless the examination is shown to be job-related and consistent with business necessity. The Sixth Circuit Court of Appeals recently held that an employer’s demand that an employee seek psychological counseling as a condition of continued employment may constitute a violation of the ADA.

In Kroll v White Lake Ambulance Authority, Case No. 10-2348 (6th Cir. 2012), the plaintiff, Emily Kroll, was an Emergency Medical Technician for White Lake Ambulance Authority (WLAA). She had an affair with a married co-worker and began to exhibit stress and anger at work. Several co-workers expressed to management concern for her well-being. On one occasion, while transporting a patient in emergency status, she was screaming at someone on her telephone. WLAA questioned whether Kroll could perform her job safely and told her that she must attend counseling in order to continue working. There was a dispute whether WLAA required that the counseling be psychological in nature. Kroll refused to seek counseling and did not return to work at WLAA.

Kroll filed a lawsuit, arguing that WLAA’s demand that she attend counseling constituted a violation of the ADA’s prohibition against requiring medical examinations. Finding that counseling alone did not constitute a medical examination, the trial court granted WLAA’s motion for summary judgment. However, the Sixth Circuit Court of Appeals disagreed and remanded the case for a trial.

In reaching its decision, the Sixth Circuit relied on the Equal Employment Opportunity Commission’s (EEOC’s) enforcement guidance, which defines a “medical examination” as a procedure or test that seeks information about an individual’s physical or mental health and asks whether the test or procedure in question:

  • Is administered by a health care professional,
  • Is interpreted by a health care professional,
  • Is designed to reveal an impairment of physical or mental health,
  • Is invasive,
  • Measures an employee’s performance of a task or measures his/her physiological responses to performing the task,
  • Is normally given in a medical setting or
  • Uses medical equipment.

The EEOC takes the position that, if even one of these factors is present, it may be enough to determine that a test or procedure is medical. According to the EEOC guidance, psychological tests designed to identify a mental disorder or impairment are “medical examinations,” but tests that measure personality traits such as honesty, preferences and habits are not. Relying on the first three factors listed above, the Sixth Circuit concluded that a reasonable jury could determine that WLAA’s request that Kroll seek psychological counseling was a medical examination and remanded the case to the district court for a trial.

Given this decision, employers must be very careful when they are selecting methods to identify the most qualified applicants, to promote wellness in the workplace and to ensure that employees can perform their jobs safely. Requiring an applicant or employee to undergo counseling may violate the ADA, unless an employer can show that the counseling is job-related and consistent with business necessity. It is certainly safer to focus on the employee’s performance and conduct, as opposed to the underlying causes of the poor performance or misconduct.