[authors: Gwen Morales and Jim Zuehl]
Whether psychological counseling is a “medical examination” under the Americans with Disabilities Act is an important question recently addressed by the Sixth Circuit Court of Appeals. This question is important because the ADA prohibits employers from requiring employees to undergo medical examinations unless they are “job related” and consistent with “business necessity.” In this case, the Court concluded by a split vote that the required counseling was a medical examination.
In Kroll v. White Lake Ambulance Authority (6th Cir. August 22, 2012), Kroll had worked as an Emergency Medical Technician for WLAA since 2003 without serious problems. However, the record shows that after she became involved in an affair with a married co-worker, she began showing signs of distress at work, leading coworkers to report concerns about her well-being to her supervisor. After hearing a complaint that Kroll was screaming at someone over the phone while driving an ambulance in an emergency, her supervisor met with her and ordered her to attend psychological counseling, which she refused to do.
In concluding that the counseling was a medical examination, the Court applied a seven-factor test articulated by the EEOC in its Enforcement Guidance. These factors are: (1) whether the test is administered by a health care professional; (2) whether the test is interpreted by a health care professional; (3) whether the test is designed to reveal an impairment or physical or mental health; (4) whether the test is invasive; (5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task; (6) whether the test normally is given in a medical setting; and (7) whether medical equipment is used. Not all seven factors must be met, however; in certain cases even one factor may be sufficient to determine that a test amounts to a medical examination.
Applying these factors, the Court noted that Kroll was specifically instructed to attend counseling administered by a psychologist. Accordingly, the court found factors (1) and (2) weighed in favor of finding a medical examination. The court also found factor (3) – which it deemed to be arguably the most critical of the seven factors – weighed in favor of the same conclusion. The evidence showed that WLAA was concerned that Kroll may have been suffering from depression, to the point of suicidal ideation, and that her supervisor instructed Kroll to go to the counseling “to discuss issues related to her mental health.” The court declined to comment on the remaining factors, noting that it lacked sufficient information and, more importantly, that none would affect the overall analysis. The Court remanded the case to the District Court to determine if the examination was “job related” and consistent with “business necessity,” noting that the employer may still win the case.
This case serves as a caution to employers to understand that even psychological counseling may need to be job-related and justified by a business necessity. The fact that required counseling is to be performed by a psychologist or other professional who is not a doctor does not necessarily remove it from the legal requirements that apply to “medical examinations” under the ADA.