The Sixth Circuit Court of Appeals held last week that requiring an employee to undergo psychological counseling as a condition of continued employment may constitute a medical examination that violates the Americans With Disabilities Act. In Kroll v White Lake Ambulance Authority, ___ F3d ___ (6th Cir 2012), the plaintiff was an emergency medical technician who reportedly "showed on-the-job distress over an affair with a married co-worker, principally through several outbursts at work." According to the opinion, one of those alleged outbursts occurred while the plaintiff was "driving a vehicle loaded with a patient . . . [in] emergency status with lights and sirens." Various employees allegedly expressed concern about the plaintiff's well being to her supervisor and to the company's office manager. At some point, the employer reportedly instructed the plaintiff to attend "counseling" as a condition of her continued employment. When she refused, her employment was reportedly terminated. She sued & alleged various theories of liability, including but not limited to violations of the ADA.
The district court ruled for the employer, "concluding that 'counseling alone does not constitute a medical examination under the ADA' and that, therefore, [the employer's] requirement that Kroll attend counseling as a condition of continued employment was not governed" by the ADA. Plaintff appealed.
The central issue on appeal was whether the counseling that Kroll was instructed to attend constituted a "medical examination" under 42 USC § 12112(d)(4)(A). The ADA prohibits employers from "requiring a medical examination" or "mak[ing] inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity."
The Sixth Circuit applied the "seven-factor test" articulated in the EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees and held that the counseling that the plaintiff was required to attend did indeed constitute a "medical examination" for purposes of the ADA. Finding the third factor particularly relevant, it held that "a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect."
The Court concluded its opinion by observing that the employer "may still be entitled to summary judgment if such counseling was 'job related' and consistent with 'business necessity.'" Since that issue had neither been decided by the district court nor briefed on appeal, the case was remanded for a decision in that regard.
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The district court ruled for the employer, "concluding that 'counseling alone does not constitute a medical examination under the ADA' and that, therefore, [the employer's] requirement that Kroll attend counseling as a condition of continued employment was not governed" by the ADA. Plaintff appealed.
The central issue on appeal was whether the counseling that Kroll was instructed to attend constituted a "medical examination" under 42 USC § 12112(d)(4)(A). The ADA prohibits employers from "requiring a medical examination" or "mak[ing] inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity."
The Sixth Circuit applied the "seven-factor test" articulated in the EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examination of Employees and held that the counseling that the plaintiff was required to attend did indeed constitute a "medical examination" for purposes of the ADA. Finding the third factor particularly relevant, it held that "a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect."
The Court concluded its opinion by observing that the employer "may still be entitled to summary judgment if such counseling was 'job related' and consistent with 'business necessity.'" Since that issue had neither been decided by the district court nor briefed on appeal, the case was remanded for a decision in that regard.
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