The ADA forbids employers from requiring medical examinations unless they are job-related.  In a significant new decision, a federal appeals court yesterday has held that psychological counseling may be considered a “medical examination” under the Americans With Disabilities Act (“ADA”).

Plaintiff Is Directed To Get Counseling But Refuses

The facts of this case are important, although somewhat in dispute, which is why the appeals court sent it back for a trial. The Court recited the relevant facts as follows: Plaintiff was a good EMT ambulance driver, and after she became “romantically involved” with a co-workers, employees expressed concern about her well being and the office manager “requested” that she receive psychological counseling.

There was a later dispute between plaintiff and another co-worker, and a complaint about her screaming on the phone while driving a patient in an emergency vehicle, which led to her supervisor ordering her to attend counseling. She refused, was fired, and sued alleging that the demand that she attend counseling was in violation of the ADA, and that her firing was in retaliation for her refusal to attend counseling.

The ADA Section on Medical Examinations and The EEOC Guidance

The appeals court wrestled with whether such counseling constitutes a “medical examination” under the ADA. The relevant section of 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.”

The Court found “very persuasive authority” about what this section of the ADA means from the EEOC’s "Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act (ADA)," which the Court stated “explains 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.’”

The Court stated that the reason behind the law as noted by the EEOC is to prevent discrimination by “precluding employers from obtaining information about ‘nonvisible disabilities, such as ... mental illness,’ and then taking adverse employment actions ‘despite [an individual’s] ability to perform the job.’”  The Court noted that the EEOC's Guidance suggests that psychological tests that are designed to identify a mental disorder or impairment are medical examinations, while psychological tests that measure personality traits are not.

Based upon the Court’s reading of the law and the EEOC Guidance, it held that because the company expressed concern that plaintiff was suffering from depression, there were issues of fact to be sent for a trial as to whether the employer intended for her to attend counseling so that she could explore the possibility of mental health impairment and receive treatment – which would be violative of the ADA.

Unfortunately, the law is the law, and although the intent is to protect employees, it has the effect sometimes of punishing good Samaritan employers -- let no good deed go unpunished!