A recent Sixth Circuit Court of Appeals decision serves as a reminder that employers must exercise caution when requiring employees to undergo a medical examination. In Kroll v. White Lake Ambulance Authority, Docket No. 13-1774 (6th Cir. Aug. 19, 2014), the Sixth Circuit found that an employer violated the Americans With Disabilities Act ("ADA") when a supervisor told an employee she had to undergo psychological counseling. In doing so, the Sixth Circuit held that psychological counseling constitutes a "medical examination" under the ADA and, therefore, can only be required where the examination is "job-related and consistent with business necessity."
The plaintiff, Emily Kroll, worked as an EMT for the White Lake Ambulance Authority (WLAA). Although her supervisors initially considered her to be a good employee, her workplace behavior became problematic following an affair with a married co-worker. WLAA became concerned over Kroll's emotional well-being after she was observed by employees crying in the parking lot, called her Office Manager in tears after finishing a shift, and it was reported she failed to administer oxygen to a patient because she was arguing with a female co-worker during an ambulance run. Another co-worker also reported that Kroll had screamed at a male acquaintance on a cell phone while driving an ambulance loaded with a patient.
The WLAA Director, Brian Binns, advised Kroll that she could continue her employment with WLAA only if she agreed to undergo psychological counseling. Binns admitted at trial that he decided to compel counseling because Kroll's "life was a mess and he thought he could help her." He also explained that he was concerned about Kroll's personal life and sexual relationships. Kroll testified that Binns told her she "needed counseling because of [her] immoral personal behavior." WLAA did not consult with a psychologist or mental health professional before deciding to force Kroll to attend counseling. Kroll refused counseling because she could not afford to pay for it and never returned to work.
Kroll sued WLAA claiming she was constructively discharged because the requirement that she attend counseling violated the ADA. The ADA states: "A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity."
In August 2010, a U.S. District Court dismissed Kroll's lawsuit holding that the psychological counseling at issue did not constitute a medical examination. The District Court also found that Kroll posed a "direct threat" to her own safety and others because of the potential danger of her unsafe driving.
The Sixth Circuit's Decision
Kroll appealed to the Sixth Circuit, which overturned the lower court's decision, ruling that psychological counseling did fall under the ADA definition of a medical examination. In reaching its decision, the Sixth Circuit stated "[a]n employer may request a medical examination when 'there is significant evidence that could cause a reasonable person to inquire as to whether [the] employee is still capable of performing [her] job.'" The Sixth Circuit then found that "Binns knew only that Kroll had broken a safety rule once and provided suboptimal care to a patient once. Kroll's isolated moments of unprofessional conduct might reasonably have prompted Binns to begin internal disciplinary procedures or to provide Kroll with additional training, but they could not support the conclusion that Kroll was experiencing an emotional or physical problem that interfered with her ability to perform her job functions."
The Sixth Circuit also determined Kroll was not a direct threat. An employee poses a direct threat when she "creates a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." The assessment of direct threat must be "'individualized' to the employee's abilities and job functions and 'based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.'" Since Binns testified he only knew of two isolated incidents of Kroll possibly endangering a person, "Binns could not reasonably have concluded from these missteps that Kroll presented 'a significant risk to the health or safety of others.'" Binns also did not make his decision based on a reasonable medical judgment since "an employer must do more than follow its own lay intuition regarding the threat posed by an employee's potential medical condition."
What are the Takeaways from Kroll?
- The ADA protects employees not just from inquiries about their physical health but their mental health as well.
- An employer's good intentions do not justify requesting a medical exam. The standard is whether the examination is job-related and consistent with business necessity. An employer must have significant evidence that would cause a reasonable person to inquire as to whether the employee is still capable of performing his/her essential job functions. As a result, the employer's focus needs to be on whether the employee's behavior is negatively impacting his/her ability to perform essential job tasks, or whether the employee constitutes a direct threat to himself or others.
- An employer should document the reasons for requesting a medical exam, such as through co-worker or supervisory statements of observed behavior, comments, or other workplace conduct - and evaluate those events in relation to the employee's ability to perform his/her essential job functions, or whether the employee poses a direct safety in the workplace.
- Consider using disciplinary action or providing training in lieu of mandating a medical examination if an employee is not adequately performing his/her job.
If you have any question about the Kroll decision or when an employer may request an employee to undergo a medical exam, please contact Kurt Graham at eat0@eau0eav0eaw0 or (616) 608-1144, or your Clark Hill Labor & Employment Attorney.