In a case with facts more akin to a soap opera than a lawsuit, a federal court in Michigan granted summary judgment to an employer, WLAA, who required an emergency medical technician to undergo psychological counseling as a condition of continued employment. Kroll v. White Lake Ambulance Authority, (W.D. Mich., May 22, 2013)

Summary judgment was first granted in August 2010 on the basis that psychological counseling is not a medical examination. However, the Sixth Circuit Court of Appeals reversed and remanded, holding that there was sufficient evidence for a jury to find the counseling to be a medical exam under the ADA and therefore subject to the "job-related and consistent with business necessity" requirement.

On May 22, 2013, the district court considered the case again, this time granting summary judgment for WLAA on the basis that the directive to receive psychological counseling was job related and consistent with business necessity.

An employer may require a medical examination where it 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.

Here, according to the decision, Kroll had a tumultuous affair with a married coworker, Easton. The two often became jealous of one another, leading Easton to check Kroll's text messages and even hack into her email account. Other employees began voicing concerns about Kroll's mental and emotional health. Some said they thought Kroll was suicidal and that they often found her crying. Also, employees reported that Kroll often fought with Easton via texting and calls, sometimes while crying, while driving the ambulance. Kroll was also reported to have refused to give a patient oxygen when asked to do so by another alleged girlfriend of Easton. Based on these reports, the Company determined that Kroll needed to go for psychological counseling to remain employed.

The Court found that the concerns expressed by the WLAA employees regarding Kroll's emotional health and its impact on her work performance provided a significant basis for WLAA to question whether Kroll could perform the essential functions of her job and justified requiring a mental health evaluation. The same factors also justified requiring psychological counseling on the basis that Kroll posed a direct threat to herself and others.

The Court's approach in this case illustrates a few key points for employers: it is facts showing work-related concerns that make the difference in successfully defending fitness for duty evaluations, a thorough investigation with documentation is necessary and action related to fact-based concerns is more easily defensible