Employment-Sixth Circuit Rules That Psychological Counseling Is A Medical Examination For Purposes Of The ADA

In Kroll v. White Lake Ambulance Authority, No. 10-2348 (6th Cir. 2012), the plaintiff, Emily Kroll (“Kroll”), was appealing the district court’s grant of summary judgment to her former employer, defendant White Lake Ambulance Authority (“WLAA”), on her claims under the Americans with Disabilities Act (the “ADA”). The primary issue on appeal was whether the counseling program WLAA ordered Kroll to attend is a “medical examination” under the ADA (specifically, under 42 U.S.C. § 12112(d)(4)(A)).

In this case, Kroll was working for WLAA as an Emergency Medical Technician (an “EMT”). She was considered a good employee. However, after Kroll became romantically involved with one of her co-workers at WLAA, she began to exhibit erratic behavior. The WLAA required Kroll to receive psychological counseling. Kroll did not agree to receive the counseling, since she would have to pay for it with her own funds, and instead she left her position at WLAA. Ultimately, Kroll filed this suit claiming, among other things, that WLAA violated the ADA by requiring her to receive psychological counseling, a type of medical examination.

In analyzing the case, the Sixth Circuit Court of Appeals (the “Court”) noted that, under the ADA (again, in Title 42 U.S.C. § 12112(d)(4)(A)) an employer is prohibited from requiring a medical examination, or making inquiries of an employee as to whether an employee is an individual with a disability, unless the examination or inquiry is shown to be job-related and consistent with business necessity, or unless another exception applies. But is psychological counseling a “medical examination” to which the foregoing prohibition applies? To make this determination, the Court reviewed the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act . This guidance defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” It provides the following seven factors for analyzing whether a test or procedure qualifies as a “medical examination” and notes that “one factor may be enough to determine that a test or procedure is medical”:

(1) whether the test is administered by a health care professional;
(2) whether the test is interpreted by a health care professional;
(3) whether the test is designed to reveal an impairment or physical or mental health;
(4) whether the test is invasive;
(5) whether the test measures an employee’s performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and,
(7) whether medical equipment is used.

Based on the evidence presented by Kroll, factors (1), (2) and (3) are answered in the affirmative. The Court found that a reasonable jury could find that these factors, so answered, weigh in favor of concluding that the psychological counseling Kroll was required to attend constituted a “medical examination.” The Court reached this conclusion, in particular, because the psychological counseling in question was likely to probe and explore whether Kroll suffered from a mental-health disability, regardless of whether this was WLAA’s intention. An analysis of the remaining factors is not needed. As such, the Court ruled that the psychological counseling in question is a medical examination. Accordingly, the Court vacated the district court’s summary judgment, and remanded the case back to the district court to determine if an exception to the medical examination prohibition applies in this case.