For over twenty years, the Americans With Disabilities Act has prohibited employers from conducting medical examinations of current employees unless they are “job related and consistent with business necessity.” Typically, employers comply with that prohibition by applying a common sense understanding of what constitutes an “examination.” But a recent decision of the Sixth Circuit Court of Appeals has interpreted the term broadly, giving life to expansive EEOC regulations and creating potential liability for unwary employers.
In Kroll v. White Lake Ambulance Authority, the employer had instructed Kroll, an ambulance driver, to receive counseling as a condition of continuing her employment after it had received several complaints regarding Kroll’s conduct at work. Those complaints began after Kroll had broken off a romantic relationship with a co-worker and peaked with a complaint regarding Kroll screaming at a male acquaintance on the phone while driving a vehicle loaded with a patient during an emergency. When Kroll refused to attend counseling and walked out of the meeting with her supervisor, her employment was terminated.
Kroll sued her former employer under a number of theories, including a claim that the employer's requirement that she receive counseling violated 42 U.S.C. §12112(d)(4), the section of the Americans With Disabilities Act that prohibits employers from requiring employees to submit to medical examinations that are either not job related or consistent with business necessity. The district court dismissed that claim on the employer's motion, finding that, "counseling alone does not constitute a medical examination under the ADA."
Kroll appealed, and presented the Sixth Circuit with an issue of first impression: whether an employer's requirement that an employee attend counseling as a condition of continuing to work constituted an illegal requirement that the employee receive a "medical examination" in violation of the ADA. The question turned on what defines a "medical examination" under the statute.
The Court, finding no real guidance in either the language of the statute itself or in the legislative history, turned to the EEOC Enforcement Guidance, which defines a "medical examination" as any "procedure or test that seeks information about an individual's physical or mental impairments or health." The Court then cited to the seven-factor test contained in those regulations, which require consideration of whether
- The test is administered by a health care professional;
- The test is interpreted by a health care professional;
- The test is designed to reveal an impairment or physical or mental health;
- The test is invasive;
- The test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
- The test normally is given in a medical setting; and
- Medical equipment is used.
The Court went on to note that the existence of even one of those factors may be sufficient to create a "medical examination, and adopted the EEOC's position that "psychological tests that are designed to identify a mental disorder or impairment are medical examinations, while psychological tests that measure personality traits such as honesty, preferences and habits are not." Altogether, the acid test adopted by the Court was whether the test or examination is "likely to elicit information about a disability, providing a basis for discriminatory intent."
Applying that test, the Sixth Circuit held that because the employer required Kroll to "receive psychological counseling" and to "see a mental health counselor as a condition of keeping her employment," a question of fact existed as to whether a medical examination had been ordered. The Court found that psychological counseling met the first and second parts of the seven factor test, because, regardless of whether the psychologist would have acted in a passive, facilitating role, or a test-oriented, diagnostic role, a reasonable jury could conclude that the psychologist would have, at a minimum, done some interpretation of the content of the counseling to assist Kroll with her problems. The Court likewise found that the third factor was satisfied, because a reasonable jury could conclude that the employer intended for Kroll to attend counseling to explore potential depression—the precise "uncovering of mental health defects" that the ADA prohibits absent a job related business necessity. The Court lacked information sufficient to evaluate the remaining four factors and simply declined to comment on them, choosing instead to remand the case for further development and overturn the lower court's grant of summary judgment.
Employers must, in the wake of Kroll, be particularly vigilant before requiring an employee to receive counseling as a condition of further employment. Those types of requirements are likely to be interpreted as "medical examinations," and must therefore be required only when they are job related and consistent with a business necessity. Any employer ordering counseling must be prepared to articulate that reasoning clearly, or risk potential liability for violation of the Americans With Disabilities Act.