Federal Appellate Court Holds That Requiring An Employee To Undergo Psychological Counseling May Constitute Requiring A Medical Examination Under The ADA

While numerous cases have dealt with whether a particular medical examination required by an employer was "job related" and consistent with "business necessity," a new case from the U.S. Court of Appeals for the Sixth Circuit addresses the issue of what constitutes a "medical examination" under the Americans with Disabilities Act (ADA). In Kroll v. White Lake Ambulance Auth., No. 10-2348 (6th Cir. Aug. 22, 2012), the court looked to the 2000 EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA) ("Guidance") and adopted the EEOC's seven-prong test. Relying principally on three factors of that test, the court concluded that a jury must decide whether the employer's requirement that the plaintiff obtain psychological counseling amounted to requiring the plaintiff to undergo a "medical examination." The decision serves as an important reminder for employers to carefully consider any directives that an employee obtain counseling, therapy, or other treatment.

Background

The plaintiff began working for the White Lake Ambulance Authority in 2003 as an emergency medical technician. While employed, she began a romantic relationship with one of her coworkers. The plaintiff's coworkers thereafter expressed concerns to the employer about the plaintiff's well-being. According to the plaintiff, the employer's office manager subsequently requested that she obtain psychological counseling. The plaintiff declined her employer's request.

A few days later, the employer's director held a meeting with the plaintiff in connection with a dispute involving the plaintiff and a coworker. At that meeting, the director informed the plaintiff of a complaint against her that she was screaming at a male acquaintance on the phone while driving a patient in an ambulance with emergency lights and sirens engaged. As a result, the director advised the plaintiff that her continued employment was conditioned upon her obtaining counseling. The plaintiff responded that she would not attend counseling, left the meeting, and never returned to work.

The plaintiff filed suit, alleging in part that her employer violated her rights under the ADA (42 U.S.C. section 12112(d)(4)) by requiring her to submit to a "medical examination" in the form of counseling.

The Sixth Circuit's Decision

The Sixth Circuit reversed the trial court's determination that counseling was not a "medical examination" under...