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Last week, in a case of first impression titled Kroll v. White Lake Ambulance Authority,
the Sixth Circuit found that psychological counseling may qualify
as a "medical examination" under the Americans With
Disabilities Act ("ADA"), which forbids employers from
requiring medical exams unless they are job-related. The
Circuit Court vacated the lower court's ruling in favor of
White Lake Ambulance Authority on summary judgment in a
discrimination case brought by Emily Kroll, a former
employee. Kroll had refused to attend psychological
counseling mandated by White Lake after other employees reported
concerns about Kroll's well-being and White Lake received a
complaint that Kroll had been screaming at a male acquaintance on
her cell phone while driving an ambulance in emergency status with
lights and sirens. The district court found that such
psychological counseling alone did not constitute a medical
examination.
The Circuit Court disagreed, differentiating between
psychological tests designed to identify a mental disorder or
impairment, which do constitute medical examinations under the ADA,
and psychological tests that measure personality traits or make
vocational predictions, which do not constitute medical
examinations. The Court relied on the EEOC Enforcement Guidance on Disability-Related Inquiries
and Medical Examinations of Employees ("EEOC
Guidance"), which provides a seven-factor test for analyzing
whether a test or procedure qualifies as a medical
examination. The factors include: (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; (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.
Any one of these factors may be enough to support a finding that
the activity is a medical examination, according to the EEOC
Guidance. The Court found that the first two factors were
clearly present in the psychological counseling mandated by White
Lake. The Court evaluated the third factor, whether the test
is designed to reveal an impairment or physical or mental health,
in closer detail, recognizing that psychological counseling is not
always targeted to an actual mental-health diagnosis.
Ultimately, however, the Court stated that when an employer
requires an employee to go to the counseling "to discuss
issues related to her mental health," a reasonable jury could
find that such counseling constituted a medical examination under
the seven-factor test. The Court did not discuss the other
four factors because the first three factors would be sufficient
for a jury to find in favor of Kroll.
The Court remanded the case because there was a factual dispute
around whether the counseling was intended to be
"psychological" (and, therefore, related to mental
health), and, more importantly, because the district court did not
hear argument or decide on the question of whether the counseling
was job-related and in line with business necessity. The
Court stated that White Lake may still be entitled to summary
judgment if it can show that the counseling was job-related and
consistent with business necessity. Given the Circuit
Court's heavy reliance on the EEOC Guidance, the EEOC's
test for whether a disability-related inquiry or medical
examination is job-related and consistent with business necessity
may be a focal point in the remanded case. The EEOC Guidance
states that an inquiry or medical examination may be job-related
and consistent with business necessity when an employer has a
reasonable belief, based on objective evidence, that: (1) an
employee's ability to perform essential job functions will be
impaired by a medical condition; or (2) an employee will pose a
direct threat due to a medical condition.
All individuals- whether disabled or not- have a private right
to sue under the provision of the ADA prohibiting medical
examinations. Employers must take care, therefore,
and be mindful of the ADA's job-relatedness and
business necessity requirements when demanding, or even
recommending, that an employee take part in any type of medical
inquiry, psychological counseling, or examination.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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