Yesterday, a divided panel of the federal Sixth Circuit Court of Appeals found that an employer’s mandatory referral of an apparently depressed and possibly suicidal employee to mental health counseling constituted a medical examination, which under the ADA can only be required when job related and consistent with business necessity. Kroll v. White Lake Ambulance Authority, No. 10-2348 (6th Cir. 8-22-12). In that case, the plaintiff was having an affair with a married co-worker, appeared distressed to her co-workers and may have expressed suicidal ideation. On at least one occasion, she engaged in a loud verbal altercation over her cell phone while driving a patient in the ambulance in an emergency situation (i.e., with sirens and lights). She quit after she was informed that she must attend mental health counseling as a condition of continued employment and then filed suit. The trial court dismissed on summary judgment on the grounds that counseling is not necessarily an examination. The majority of the Court found that the counseling would have necessarily involved a potential psychological diagnosis, thus rendering the counseling a “medical examination” even if the employer was not interested or inquiring into any potential diagnosis. Accordingly, the case was remanded for the trial court to determine whether the employer’s request for the examination was job –related and consistent with business necessity.
According to the Court’s opinion, there was some dispute about the nature of the counseling the plaintiff was required to receive and who would pay for it. The employer did not have a firm opinion about what was necessary, but felt that she would benefit from some sort of mental health counseling and had concerns about her ability to safely perform her job duties.
The employer attempted to argue that the plaintiff lacked standing to bring a suit under the ADA because she denied being disabled and never underwent any challenged “medical examination.” However, the court unanimously found that the plaintiff had standing to challenge the medical examination because she lost her job as a result of her refusal to submit.
The trial court found that counseling alone did not constitute a medical examination. The Court examined the EEOC’s 1995 enforcement guidelines about what constitutes a medical examination. “The EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The EEOC’s guidelines provided seven factors to consider as to whether an interaction constituted a covered medical examination. “ The guidance further explains that “psychological tests that are designed to identify a mental disorder or impairment” are “medical examinations,” while “psychological tests that measure personality traits such as honesty, preferences, and habits” are not.” . . . . [T]o determine whether something constitutes a “medical examination” one must consider whether it is likely to elicit information about a disability, providing a basis for discriminatory treatment.” Importantly, “an employer’s intent is not dispositive as to whether something qualifies as a “medical examination” under the ADA.” For instance, the Seventh Circuit previously found that an administration of the MMPI (which can diagnose psychological disorders) constituted a medical examination even though the employer only wanted to know about personality traits.
Accepting the allegation that the employer wanted the plaintiff to submit to psychological counseling, the Court found it ambiguous as to whether this was a passive, problem solving process or “the science of psychology implicating the diagnosis and treatment of mental illness.” Regardless, the Court found that a psychologist would act in some sort of diagnostic role in order to assist the plaintiff with her problems.
This brings us to factor three, arguably the most critical in this analysis: whether the psychological counseling” was designed to reveal a mental-health impairment. As previously suggested, the answer in the abstract is somewhat ambiguous. The definitions suggest that sometimes “psychological counseling” is used for the diagnosis and treatment of mental illness; the ADA recognizes as much in stating that “psychologists” are among the “variety of health professionals [that] may provide documentation regarding psychiatric disabilities” for ADA purposes. EEOC, Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (1997), http://www.eeoc.gov/policy/docs/psych.html. However, psychological counseling need not always be targeted to mental-health diagnosis—sometimes patients seek psychological counseling and specifically request that no mental-health diagnosis be made. In this instance, based on the evidence presented by [the plaintiff], 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 employer] does not dispute that it was concerned about [the plaintiff] suffering from depression, to the point of suicidal ideation, and [her supervisor] stated in his deposition that he instructed [her] to go to the counseling “to discuss issues related to her mental health.” . . . . These facts are sufficient for a reasonable jury to conclude that [the employer] intended for [the plaintiff] to attend counseling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment. This uncovering of mental-health defects at an employer’s direction is the precise harm that § 12112(d)(4)(A) is designed to prevent absent a demonstrated job-related business necessity.
Based on these three factors alone, the Court concluded that the mandatory counseling constituted a “required medical examination” under the ADA. “We reach this conclusion, because the ‘psychological counseling’ in question was likely to probe and explore whether [the plaintiff] suffered from a mental-health disability, regardless of whether this was [the employer’s] intention.”
The dissent argued that the plaintiff could have picked her own counselor and avoided any medical inquiries, thus removing the “required” from “medical examinations” covered by the ADA.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
