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Kroll v. White Lake Ambulance, No. 13-1774 (6th Cir. Aug. 19, 2014)

So far, There has been relatively little case law on the question of when, under Title I of the Americans with Disabilities Act, an employer's medical examination may be deemed job-related and consistent with business necessity under the provisions of 42 U.S.C. § 12112(d)(4)(A). The Sixth Circuit - nearly two years to the day after its first opinion in this long-running case - remands the claim a second time for a jury trial on this issue.

Kroll v. White Lake Ambulance, No. 13-1774 (6th Cir. Aug. 19, 2014): The ADA generally prohibits employers from requiring a medical examination of employees "unless such examination or inquiry is shown to be job-related and consistent with business necessity." 42 U.S.C. § 12112(d)(4)(A). Here, the employer required Ms. Kroll - an Emergency Medical Technician ("EMT") specialist - to attend counselling, after she was observed having several angry outbursts at her workplace.

In the original panel decision (Kroll v. White Lake Ambulance, 691 F.3d 809 (6th Cir. 2012)) a 2-1 split panel applied an EEOC Enforcement Guidance, "Disability-Related Inquiries and Medical Examinations of Employees," to hold that the proposed counselling could qualify as a "medical examination" under this provision. On remand, the district court granted summary judgment again, this time holding that the proposed examination met the job-relatedness and business-necessity standards.

The record, as described in the panel opinion, nevertheless seemed equivocal on this point. Her director, named Binns, knew of only one incident where Ms. Kroll's behavior may have affected her job performance: it was reported to Binns that Ms. Kroll had refused to administer oxygen to a patient during an ambulance run. Binns, after receiving this report, met with Ms. Kroll and her father about the situation: "Binns told Kroll that she could continue her employment with WLAA only if she agreed to undergo counseling. Binns admitted during his deposition that he 'never had a problem with [Kroll] as far as patient care.' Rather, he decided to compel counseling because Kroll's 'life was a mess and [h]e thought [h]e could help her.'" (Citations omitted.)

The panel, this time unanimously, remands the case again for a trial. Defining the legal standard, the panel holds that "The business-necessity standard cannot be satisfied by an employer's bare assertion that a medical examination was merely convenient or expedient. Rather, the individual who decides to require a medical examination must have a reasonable belief based on objective evidence that the employee's behavior threatens a vital function of the business." (Citation omitted.)

The panel observes that Binns had limited information that Ms. Kroll's emotional state was affecting her work. There was a genuine dispute of material fact whether Binns was aware of There concerns at the time he ordered counselling, such as Ms. Kroll's alleged violations of cell-phone rules while on ambulance duties. And because Ms. Kroll herself was not seeking counselling as an accommodation for work, the employer bore the burden of establishing Binns had a reasonable basis for believing that Ms. Kroll "was unable to perform the essential functions of her job, or that she posed a direct threat to her own safety or the safety of Theres." (Citations omitted.)

The panel notes that the record does not one-sidedly favor the employer. "A reasonable jury could find that Kroll's emotional outbursts outside of work hours and not in the presence of patients did not impair her ability to perform essential job functions." All that Binns undisputedly knew at the time was that Ms. Kroll reportedly committed a couple of work rule infractions.

"Therefore, had Binns been aware of a pattern of behavior that showed Kroll's emotional or psychological problems were interfering with her ability to drive an ambulance safely, he might have been justified in ordering a medical examination. In the instant case, however, Binns knew only that Kroll had broken a safety rule once and provided suboptimal care to a patient once. Kroll's isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with addition al training, but they could not support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions."

The panel also holds that There is insufficient evidence of a direct threat to support summary judgment on this point.

"Therefore, had Binns been aware of a pattern of behavior that showed Kroll's emotional or psychological problems were interfering with her ability to drive an ambulance safely, he might have been justified in ordering a medical examination. In the instant case, however, Binns knew only that Kroll had broken a safety rule once and provided suboptimal care to a patient once. Kroll's isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with addition al training, but they could not support the conclusion that Kroll was experiencing an emotional or psychological problem that interfered with her ability to perform her job functions."

Moreover, the panel holds that the summary judgment record did not support that Binns made the decision to impose counselling "based on a reasonable medical judgment." 29 C.F.R. § 1630.2(r). The panel declines to define precisely what this regulation demands of employers, but holds at a minimum that "an employer must do more than follow its own lay intuition regarding the threat posed by an employee's potential medical condition." Here, There was no evidence in the record that Binns made any kind of medical judgment at all."

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