The Sixth Circuit holds in a 2-1 panel decision that an employer’s demand that an employee “receive psychological counseling” and “see a mental health counselor as a condition to keeping her employment” may constitute a prohibited “medical examination” under 42 U.S.C. § 12112(d)(4)(A). The unanimous panel also holds that the employee need not actually submit to the demand to have standing to challenge it.
Kroll v. White Lake Ambulance, No. 10-2348 (6th Cir. Aug. 22, 2012): The ADA, in addition to imposing anti-discrimination and reasonable accommodation requirements to safeguard the ability of disabled persons to work, also contains prohibitions against certain kinds of medical testing. One relevant provision states:
“A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
42 U.S.C. § 12112(d)(4)(A) (emphasis added). This case presents a situation where the employer arguably required a psychological examination of an employee – an Emergency Medical Technician (“EMT”) specialist – accused of several outbursts at her workplace.
Employee Kroll, after allegedly commencing a romantic relationship with a co-worker, had run-ins with employees that allegedly became shouting matches, including one during an ambulance run with a patient on board. According to Kroll, office manager Dresen “requested” that Kroll “receive psychological counseling,” referred to a specific counselor (thought the record does not reflect whether that indidividual was a medical professional), that Kroll approach the Red Cross about financial assistance for counseling. A few days later, WLAA director Binns allegedly told Kroll and her father that “was concerned about Kroll’s ability to perform her job safely, he told Kroll that she must attend counseling in order to continue working at WLAA.”
The district court held that these were not requests for medical examination, but the panel majority reverses. The entire panel agrees that Kroll was not required to submit to the request to have standing to challenge it. While “WLAA contends that Kroll cannot identify such harm because Kroll never underwent counseling and was opposed to counseling only insofar as she was required to pay for it out-of-pocket . . . . Kroll has alleged an injury proximately caused by the violation of 42 U.S.C. § 12112(d): the termination of her employment. [Citation omitted.]Because we have the capacity to provide a remedy for this harm, the requirements of Article III standing are met.”
The panel then confronts what it means to be required to attend a medical examination. Because the statute does not define these terms and no legislative history sheds light on them, the panel majority looks to a year 2000 EEOC Enforcement Guidance, “Disability-Related Inquiries and Medical Examinations of Employees,” which sets a seven-factor test for evaluating whether a test or procedure qualifies as a “medical examination”
“(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.”
Applying that standard to the facts of the case, the panel finds that a jury could determine that the demand for counseling was a “medical examination”
“It is clear that both factors one and two-administration and interpretation by a health-care professional-weigh in favor of the ‘psychological counseling[.]’ Kroll was instructed to attend being a “medical examination.” Kroll specifically alleged, and Binns provided support for the conclusion, that Kroll was instructed to attend counseling administered by a psychologist. Regardless of whether the psychologist would have acted in a passive, facilitating role, or a test-oriented, diagnostic role a reasonable jury could conclude that the psychologist would have, at minimum, done some interpretation of the content of the counseling in order to assist Kroll with her problems; indeed, this was the reason why WLAA insisted that Kroll attend the counseling. . . .”
The panel also finds a jury issue on factor three:
“In this instance, based on the evidence presented by Kroll, a reasonable jury could conclude that the psychological counseling Kroll was instructed to attend was the type designed to uncover a mental-health defect. WLAA does not dispute that it was concerned about Kroll suffering from depression, to the point of suicidal ideation, and Binns stated in his deposition that he instructed Kroll to go to the counseling ‘to discuss issues related to her mental health.’ R. 52-4 (Binns Dep. at 60). These facts are sufficient for a reasonable jury to conclude that WLAA intended for Kroll 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.”
Finding the evidence on the remaining factors underdeveloped, the panel remands the case for further examination but holds that the first three factors alone presented sufficient evidence to submit the issue to a jury, along with WLAA’s defense that such counseling was “job related” and consistent with “business necessity.”
Judge Sutton, while concurring in the standing analysis, dissents on the merits. He would hold that the simple request to seek counselling, even as a condition of employment, does not “require” the employee to obtain a “medical examination”:
“The law bars a required medical examination-and that did not happen. When Kroll, an emergency medical technician, showed on-the-job distress over an affair with a married co-worker, principally through several outbursts at work, her employer, the White Lake Ambulance Authority, understandably tried to do something about it. The employer, however, did not compel Kroll to take a medical examination. It compelled her to obtain psychological counseling, allowing her to obtain it on her own terms and with any counselor she wished. The employer had no interest in the outcome of the counseling, no interest in any potential diagnosis, no interest in the type of counseling she received, no interest in anything at all save verification that she obtain some form of counseling if she was going to continue providing EMT services for the ambulance company.”
Examinations of Employees