Heaven help the misguided employer who instructs an employee to go for unspecified "counseling."  A panel of the Sixth Circuit Court of Appeals, in a 2-1 decision,* recently ruled that such a directive to an employee may be a violation of the Americans with Disability Act's prohibition against requiring a worker to undergo a "medical examination" when it is not job-related and consistent with business necessity.** 

The employee in Kroll, an emergency medical technician, became romantically involved with a married fellow worker.  Although the facts are not clear from the Kroll decision, it is undisputed that this resulted in emotional outbursts between the two employees.  On one occasion, the plaintiff - while driving an ambulance with a patient in emergency status, with lights and sirens operating - screamed at her paramour.  Because her supervisor questioned her ability to perform her job safely, he directed the plaintiff to undergo unspecified "counseling" to discuss "issues related to her mental health."  Ms. Kroll's immediate reaction was to say she would not go to counseling, and to walk out, never to return.  She later filed an ADA suit.

The term "counseling," of course, could have referred to various things in this context - perhaps legal counseling or interpersonal relationship counseling - but the plaintiff alleged that she was directed to go for "psychological counseling."  The supervisor testified that he didn't think he used the term "psychological" when he referred to the counseling.  But he responded affirmatively in his deposition when he was asked leading questions about whether it would "be fair to say" that he asked her to "see a psychologist to discuss issues related to her mental health."

The district court granted summary judgment for the defendant on the "medical examination" claim, ruling that "counseling alone does not constitute a medical examination under the ADA."  The majority of the Sixth Circuit panel reversed this decision, holding that the plaintiff's allegations and the facts (when viewed most favorably to the plaintiff) raised a fact dispute as to whether the "counseling" directed by the supervisor could have been a "medical examination."  In reaching this conclusion, the majority looked to the plaintiff's testimony that the term "psychological counseling" was used, the supervisor's admission that he expected her to be seen by a psychologist to discuss her mental health, and the employer's concern that the plaintiff might be suicidal.  The majority relied heavily on an EEOC enforcement guidance, which lists factors to be considered when assessing what is and is not a "medical examination."  Because the counseling required by the employer involved a psychologist and because a psychologist could administer tests and interpret the results, to uncover whether the plaintiff had a mental health impairment, the Court concluded that the counseling could be a prohibited "medical examination." 

The "medical examination" question would not be the end of the case, however, the Court ruled.  Even if the plaintiff proved that she was ordered to undergo a "medical examination," the employer might still be able to prove that the examination was job-related and consistent with business necessity.

The majority's decision appears to be based on a fallacy of reasoning.  Although some psychological counseling includes medical examinations, some does not.  As noted by the dissenting judge, even under the plaintiff's version of the facts, the employer allowed her "to obtain [the counseling] on her own terms and with any counselor she wished."  By not specifying the content of the "counseling," the employer did not require any "medical examination."  "No evidence . . . shows that the ambulance service insisted [Ms. Kroll] submit to any test while obtaining counseling."

Likewise, the majority's decision overlooks the fact that plaintiff did not allege or offer evidence that her employer directed her to go to counseling for the purpose of obtaining from the counselor information about whether the plaintiff was disabled.  This was not a case in which an employer tells an employee to go to the psychologist of the employer's choosing, or to otherwise take steps that will result in a report back to the employer about whether the plaintiff is disabled.  By not dictating the identity of the counselor or the format of the counseling, the employer's directive may have been nothing more than a plea that the plaintiff get help for her obvious troubles.

* Kroll v. White Lake Ambulance Authority, No. 10-2348 (6th Cir. Aug. 22, 2012)

** 42 U.S.C. § 12112(d)(4)(A)