The Americans with Disabilities Act (ADA) prohibits employers from requiring a “medical examination” and from making inquiries about the nature or severity of an employee’s possible disability, unless such exam or inquiry is shown to be “job-related and consistent with business necessity.” Most employers understand this issue as it applies both to medical examinations of current employees and to post-offer pre-employment physicals. Many of those same employers, however, may not have considered the ADA ramifications of asking an obviously distressed employee from seeking mental health counseling. That particular issue now is in the spotlight: the 6th U.S. Circuit Court of Appeals recently held that an employer’s directive to an employee to see a mental health counselor as a condition to keeping her employment constituted a medical examination under the ADA. Kroll v. White Lake Ambulance Authority, 6th Cir., No. 10-2348, August 22, 2012.

Emily Kroll began her employment with White Lake Ambulance Authority (WLAA) as an EMT in September 2003. Kroll was considered to be a good employee until becoming romantically involved with a co-worker, after which her supervisor and office manager received reports from other WLAA employees about Kroll’s “well being.” Subsequently, the office manager told Kroll that she thought Kroll could benefit from talking to a mental health care provider and Kroll agreed to do so. A few days later, however, the then-director of WLAA met with Kroll and Kroll’s father to discuss an incident between Kroll and a co-worker in which Kroll was alleged to have been “screaming” on the phone with a male acquaintance while she was driving an ambulance in “emergency status” (with lights and sirens) containing a patient. At that point, the director told Kroll that she must attend mental health counseling in order to continue her employment with WLAA. Kroll said she would not attend counseling, left the meeting, and never returned to work at WLAA.
Kroll ultimately filed a lawsuit alleging violations of the ADA, retaliation, and Title VII. The lower court granted WLAA’s motion for summary judgment on all counts, concluding that because mental health counseling does not constitute a “medical examination” under the ADA, WLAA’s requirement of mental health counseling as a condition of continued employment did not constitute a violation of the ADA.

The issue addressed on appeal to the Sixth Circuit was whether the counseling that Kroll was instructed to attend constitutes a “medical examination” under the ADA. Under that statute, employees can be instructed to undergo medical examinations only in certain limited circumstances, confined to “job-relatedness” and “business necessity.” Unless an employer can show that a request for medical examination is supported by such criteria, the request could be viewed as a violation of the ADA. The reason for that, simply put, is that employers are not allowed to ask about an employee’s possible disability, and then use that information to make arbitrary decisions related to the continuation of the individual’s employment, based on that information.
Here, the Sixth Circuit did not address the issue of job-relatedness/business necessity, because that issue is reached only if there has been a request for a “medical examination.” Instead the Court, in an extremely detailed review of the available guidance and case law, determined that, under the criteria set forth by the EEOC for analyzing a test or procedure, a psychological test designed to reveal mental illness or to diagnose mental health issues is a medical examination under the ADA because, in the Court’s words, the “uncovering of mental-health defects at an employer’s direction is the precise harm that [the ADA] is designed to prevent . . . .” Although the Court reversed the district court’s summary judgment in favor of WLAA, it also remanded the case to that court for a determination of whether WLAA’s request for medical examination of Kroll was job-related or was based upon a business necessity.

There are three points of which employers should be aware. First, under this analysis, the fact that an employer’s intentions are “disability neutral” and do not necessarily align with the basic purpose of the test being administered does not save the test from falling under the definition of “medical examination” under the ADA. (Here, WLAA said that whether or not the mental health counseling had revealed a psychological impairment, the purpose was simply to assist Kroll in being able to do her job effectively.) Second, and importantly, all individuals, whether disabled or not, may bring a lawsuit in aid of enforcing the ADA on this issue. Third, and finally, an employer that decides to require a mental or psychological review of an employee’s health or mental status should assure that there is a business related reason for that request, and that such reason is fully and objectively documented.