Under the Americans with Disabilities Act (ADA), employers are prohibited from requiring employees to undergo medical examinations, unless the examination is “job-related and consistent with business necessity.” Some tests and procedures are unquestionably “medical examinations,” according to the Equal Employment Opportunity Commission (EEOC) – such as x-rays, cholesterol testing, blood pressure screening, and psychological tests designed to identify a mental disorder or impairment. But the precise bounds of what constitutes a medical examination, and what does not, can get fuzzy at the edges.
That is exactly what happened in Kroll v. White Lake Ambulance Authority, a case decided by the U.S. Sixth Circuit Court of Appeals on August 22, 2012. In that case, the plaintiff, a former employee of White Lake Ambulance Authority, claimed that the company’s requirement that she attend psychological counseling qualified as a medical examination, and constituted disability discrimination under the ADA. Although the lower court ruled in the employer’s favor, the Sixth Circuit overturned the lower court on appeal. Interpreting the term “medical examination” broadly, the Sixth Circuit ruled that requiring an employee to undergo psychological counseling did, indeed, constitute a medical examination for purposes of the ADA.
Plaintiff Emily Kroll had worked for White Lake Ambulance Company as an EMT for more than four years, and was generally considered a good EMT and employee by her supervisor. After she became romantically involved with a co-worker, however, her supervisor and the office manager received several reports from other employees expressing concern about Kroll’s well-being. Another co-worker also complained that Kroll had screamed at a male acquaintance on the phone while driving an ambulance loaded with a patient, with lights and sirens engaged. This complaint, in particular, made Kroll’s supervisor concerned about her ability to perform her job safely.
In response to the concerns and complaints expressed by other employees, and in light of the safety concerns raised by Kroll’s behavior, White Lake met with Kroll and told her that she had to attend counseling in order to continue working at White Lake. Although disagreement later arose between the parties over whether the required counseling was psychological in nature, the Court pointed to evidence on both sides suggesting that White Lake was, indeed, requiring counseling related to Kroll’s mental health.
After the meeting where she was told she had to attend counseling, Kroll never returned to work. She subsequently sued White Lake in a Michigan federal district court, claiming that the employer had violated the ADA’s restrictions on medical examinations by requiring her to undergo counseling as a condition of continued employment.
The district court found in favor of White Lake, granting the employer’s motion for summary judgment. The court determined that “counseling alone does not constitute a medical examination under the ADA,” and therefore that White Lake’s requirement that Kroll attend counseling was not governed by the ADA’s restrictions on medical examinations. Kroll then appealed her case to the Sixth Circuit Court of Appeals. In its analysis of the case, the Sixth Circuit noted the absence of prior court precedent or legislative history addressing the issue at hand.
Lacking prior legislative or judicial guidance, the Court turned to a seven-factor test developed by the EEOC to help employers determine if a particular procedure or test qualifies as a medical examination under the ADA.
The Court found that White Lake’s counseling requirement met three of the seven factors of the test, and therefore constituted a medical examination under the ADA. In addition, the Court noted that the required counseling was likely to probe whether Kroll suffered from a mental health disability, regardless of whether that was the employer’s intention. Based on this analysis, the Sixth Circuit reversed the lower court’s decision and remanded the case back to the lower court for further proceedings.
The Court did not reach the issue of whether Kroll’s required counseling was job-related and consistent with business necessity, because that issue had neither been addressed by the lower court nor briefed by the parties on appeal. It remains to be seen whether this issue will be addressed at trial by the lower court, now that the case has been remanded there for further proceedings.
The ADA and Medical Examinations: The Basics
Under the ADA, which applies to all employers with 15 or more employees, employers are limited in their ability to require employees to undergo medical examinations, or even to make disabilityrelated inquiries about an employee.
The extent of the limitation on medical examinations depends on the stage of the hiring process. At the applicant stage – e.g., when an individual has applied for employment, but has not been made an offer of employment – employers are prohibited from requiring any medical examinations or making any disability-related inquires. After an applicant has been made an offer of employment, but before he or she has started work, employers are permitted to conduct medical examinations and make disability-related inquiries – but only if the same examinations and inquiries are made of all entering employees in the same job category. (Note that if an individual is screened out at this stage because of a disability, the employer must be able to show that any exclusionary criteria were job-related and consistent with business necessity.)
Once a new hire begins his or her employment, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. This means that an employer must have 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.
What is a “Medical Examination” Under the ADA?
The text of the ADA itself does not specifically define “medical examination.” The Court in Kroll therefore looked to EEOC enforcement guidelines for a definition of the term. According to the EEOC, a medical examination is “a procedure or test that seeks information about an individual's physical or mental impairments or health.”
Further, the EEOC’s enforcement guidance regarding medical examinations of employees lists seven factors that should be considered in order to determine whether a particular test or procedure is a medical examination:
- whether the test is administered by a health care professional;
- whether the test is interpreted by a health care professional;
- whether the test is designed to reveal an impairment or physical or mental health;
- whether the test is invasive;
- whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
- whether the test normally is given in a medical setting; and
- whether medical equipment is used.
Any one of these factors, or a combination thereof, can be sufficient to determine if a given test or procedure qualifies as a medical examination.
The EEOC has also published a non-exhaustive list of tests and procedures that do qualify as medical examinations. These include vision tests conducted and analyzed by an ophthalmologist or optometrist; blood pressure screening; cholesterol testing; range-ofmotion tests that measure muscle strength and motor function; diagnostic procedures such as x-rays, CAT scans, and MRIs; and – importantly for the Kroll case–psychological counseling that is designed to identify a mental disorder or impairment.
Tests that are typically not considered medical examinations include: tests to determine the current illegal use of drugs; physical agility tests that measure an employee's ability to perform actual or simulated job tasks; tests that evaluate an employee's ability to read labels or distinguish objects as part of a demonstration of the ability to perform actual job functions; psychological tests that measure personality traits such as honesty, preferences, and habits; and polygraph examinations.
Notably, the ADA and its implementing regulations do not discuss whether psychological counseling is considered a medical examination. Similarly, existing EEOC guidelines do not specifically discuss psychological counseling in the context of medical examinations. The closest references that the EEOC makes to any kind of psychological tests are to “psychological tests that are designed to identify a mental disorder or impairment,” which are considered medical examinations.
It was into this gray area that Emily Kroll and White Lake Ambulance stepped when Ms. Kroll filed her ADA lawsuit. The Sixth Circuit resolved the ambiguity by determining that psychological counseling does, indeed, constitute a medical examination under the ADA.
Takeaways and Lessons for Employers
There can be very good reasons for an employer to require that an employee attend counseling, especially if the safety of co-workers or customers is at issue. They key to passing ADA muster when making such demands is to ensure that the required counseling (or any other medical examination) is, in fact, job-related and consistent with business necessity – and to be able to prove that job-relatedness and business necessity if challenged at a later date.
With that in mind, here are a few takeaways for employers:
- The Kroll case serves as a reminder that the ADA protects employees not just from inquiries about their physical health, but also from inquiries about their mental health.
- If you plan to require that an employee undergo counseling, tread as cautiously as you would if you were requiring any other type of medical examination.
- Create a record of how any required counseling is job-related and a business necessity. If an employee’s behavior raises safety concerns, document both the behavior in question and the specific safety concerns at play. This documentation might include obtaining statements from co-workers; or putting in writing specifically how the employee’s behavior is impacting his or her ability to perform required tasks, as well as how the behavior is negatively affecting your business. This rule applies not only to employees who may be asked to undergo counseling, but also to employees being asked to undergo any other type of medical examination.
- As the Kroll case demonstrates, the term “medical examination” can be defined quite broadly, and courts will not shy away from interpreting the definition broadly in favor of employees. Like it or not, the ADA is laden with gray areas and traps for the unwary. Employers should bear in mind that it is often cost-effective to consult with employment counsel before making any decisions that could fall into one of those gray areas.