In a case of first impression, the U.S. Court of Appeals for the Sixth Circuit vacated a federal district court’s judgment and concluded that psychological counseling constitutes a medical examination under the Americans with Disabilities Act (ADA).
In Kroll v. White Lake Ambulance Authority, the plaintiff had worked as an Emergency Medical Technician and was generally considered to be a good employee until she had an affair with a married co-worker and began to show on-the-job distress, principally through several outbursts at work. After an incident in which the plaintiff was screaming on the phone while a patient was being transported in emergency status, her direct supervisor worried that the plaintiff could not perform her job safely and instructed her to attend counseling in order to continue working. The plaintiff refused because she would have to pay for the counseling out of pocket.
The plaintiff did not return to work and later sued her employer claiming, among other things, that its demand that she attend counseling violated the ADA’s prohibition against employers requiring a medical examination under 42 U.S.C. § 12112(d)(4)(A). The ADA prohibits employers from “requir[ing] a medical examination” or “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity.”
To gain insight into the meaning of “medical examination,” the Sixth Circuit looked to enforcement guidance from the Equal Employment Opportunity Commission on Disability-Related Inquiries and Medical Examinations of Employees. That guidance defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health” and asks whether the test or procedure in question:
- Is administered by a health care professional
- Is interpreted by a health care professional
- Is designed to reveal an impairment of physical or mental health
- Is invasive
- Measures an employee’s performance of a task or measures his/her physiological responses to performing the task
- Is normally given in a medical setting
- Uses medical equipment
If even one of these factors is met, it “may be enough to determine that a test or procedure is medical.” The Sixth Circuit noted that according to the EEOC’s guidance, psychological tests designed “to identify a mental disorder or impairment” are “medical examinations,” while those tests that “measure personality traits such as honesty, preferences, and habits” are not. Application of this guidance is not simple or a matter of labels, as “personality” tests that reveal symptoms of diagnosable mental illness still may be medical examinations. The EEOC guidance also makes clear that an employer’s intentions to remain disability-neutral may not keep a test from being viewed as one used to uncover mental illness and thus a prohibited medical examination.
The Sixth Circuit concluded that a reasonable jury could find that the first three factors weighed in favor of concluding that the psychological testing the plaintiff was instructed to attend constituted a medical examination. A psychologist would have administered and done some interpretation of the content of the plaintiff’s counseling. Furthermore, the employer intended that the plaintiff would explore her possible affliction with depression or similar mental-health impairment so that she could receive appropriate treatment. “This uncovering of mental-health defects at the employer’s direction,” the court ruled, “is the precise harm that § 12112(d)(4)(A) is designed to prevent absent a demonstrated job-related business necessity.”
The court declined to comment on the remaining four factors because the plaintiff showed sufficient evidence through the first three that a reasonable jury could find that the required psychological counseling was a medical examination. The Sixth Circuit, however, recognized that on remand the employer could be entitled to summary judgment if such counseling was job related and consistent with business necessity.
The Kroll decision is an important reminder that the ADA protects individuals from inquiries into their mental health as well as their physical health. As employers use a variety of methods to hire the most qualified applicants, to improve “wellness” at their worksites, and to ensure their employees can safely perform their jobs, employers must keep in mind that the tools they choose—from certain types of personality testing, to physical or mental agility examinations, to EAP or other psychological counseling—could qualify as medical examinations under the factors outlined by the EEOC. Employers should recognize that disability-neutral intentions may not protect them against violations of the law, and they should pay close attention to carefully selecting and designing their tools to be job related and consistent with business necessity.