Sixth Circuit Court
August 22, 2012
Keywords: employment, legal concepts, medical and health care, medical examination
Whether employer directed counseling is a “medical examination” under the ADA?
Facts of the Case
In September 2003, Emily Kroll (“Kroll”) began working for White Lake Ambulance Authority (“WLAA”) as an Emergency Medical Technician (“EMT”). She was generally considered to be a good employee by her direct supervisor, Brian Binns (“Binns”). Following Kroll’s romantic involvement with a co-worker, however, Binns and the office manager, Jean Dresen (“Dresen”), received “reports of concerns” from WLAA employees about Kroll’s “well being.”
According to Kroll, these concerns prompted Dresen to ask that Kroll receive psychological counseling on April 21, 2008. With respect to the psychological counseling, Dresen informed Kroll that she should contact the Red Cross regarding financial assistance. Furthermore, Dresen also requested that Kroll authorize the release of her counseling records so that WLAA could monitor her attendance.
On April 28, 2008, Binns met with Kroll after a dispute between Kroll and another employee. The dispute concerned a matter where Kroll was “screaming at a male acquaintance on the phone while driving a vehicle loaded with a patient in emergency status….” After this incident, Binns notified Kroll that she had to attend counseling in order to continue working at WLAA. Kroll told Binns that she would not attend the counseling; she never returned to work at WLAA. Kroll claims that WLAA expected her to pay for this counseling, which she could not afford, but she would have been willing to attend counseling if it was provided to her free of charge.
Issue of the Case
- Whether the counseling Kroll was instructed she would be required to attend in order to remain employed is considered a “medical examination” under the ADA?
Arguments & Analysis
1. Title I of the ADA related to medical examinations
To determine whether the required counseling was considered a “medical examination” under the ADA, the Sixth Circuit reviewed the relevant portions of Title I related to medical examinations including the definition of “medical examination.” Accordingly, Title I of the ADA prohibits employers from requiring a medical examination or making 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. This law was intended, in part, to prevent medical tests and inquiries that do not serve a legitimate business purpose.
The ADA provides little definitional insight on the term “medical examination,” although the Equal Employment Opportunity Commission (EEOC) does provide helpful guidance on what the term “medical examination” means.
2. Application of the Seven-Factor Test to Facts of Kroll’s Case
The EEOC defines “medical examination” as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” Moreover, the EEOC provides a seven-factor test, which may be used by a court in order to determine whether an examination, inquiry, or procedure qualifies as a “medical examination.” The EEOC is careful to note that by finding even one factor, a court may find that the fact at issue is “medical examination.”
The seven-factor test is: (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.
With respect to the first two factors, the Court found a reasonable jury could find these factors weighed in favor of a finding that Kroll was instructed to attend a “medical examination.” In examining the first factor, the Court found that a reasonable jury may find there was sufficient evidence that WLAA requested Kroll to attend counseling administered by a psychologist (i.e. a health care professional). The Court also found that a reasonable jury may find the second factor was satisfied because the psychologist, in listening to Kroll, would have to engage in some “interpretation” in order to assist her.
Next, the Court looked at what it considered to be the most important factor, the third factor. That is, whether the psychological counseling was designed to reveal a mental health impairment. The Court noted that the evidence presented indicated that WLAA was “concerned about Kroll suffering from depression.” Additional evidence offered suggested that Binns instructed Kroll to go to the counseling “to discuss issues related to her mental health.”
From this evidence, the Court found the third factor satisfied because a reasonable jury could conclude that WLAA intended Kroll to attend counseling to determine or reveal whether Kroll had a mental impairment (i.e. depression). The Court noted that the “psychological counseling” in question was likely to probe whether Kroll had a disability. Moreover, this sort of “uncovering” of a disability is the precise harm the ADA is designed to prevent absent a demonstrated job-related business necessity.
Declining to comment on the remaining factors, the Court concluded that factors one, two, and three provided sufficient evidence whereby a reasonable jury could conclude that the counseling Kroll was instructed to attend constituted a “medical examination” under the ADA.
The Court found that the actions of WLAA, instructing Kroll to attend counseling in order to remain employed, constituted a “medical examination” under the ADA. However, the Court did not reach a holding on the case because if such counseling was “job related” and consistent with “business necessity,” then WLAA’s actions may not have been discriminatory. For these reasons, the Court remanded the case to the District Court to determine whether such counseling was “job related” and consistent with “business necessity.”
Policy & Practice
This decision provides a definition and companion test for what constitutes a “medical examination”. Relying on EEOC guidelines, the Court was able to provide a succinct definition of the term “medical examination,” a term that was largely left unexplained by the ADA. The Court also utilized the EEOC guidelines in providing a seven-part test, in order to determine whether employer practices such as an inquiry or procedure qualify as a “medical examination.”
While the definition of “medical examination” or “medical inquiry” has been widely discussed in other case law, the important issue presented by this case is whether employers instructing or even requiring their employees to seek psychological counseling qualifies as a “medical examination.” Essentially, the court determined that, if an employer either instructs or requires an employee to seek psychological counseling, such an instruction or request will be deemed an improper “medical examination” under Title I of ADA unless the employer can prove this request is job-related or consistent with business necessity.
Employers can use this decision to guide them in evaluating whether or not any of their existing practices may constitute a medical examination. This way employers can stop such discrimination before it even occurs. For instance, this tool may allow employers to avoid unlawful “medical examinations” by altering or avoiding altogether precarious tests, practices, procedures or inquiries that are neither “job related” nor consistent with “business necessity.”
6th Circuit Court – Kroll v. White Lake Ambulance Authority [PDF file]
These materials do not constitute legal advice and should not be relied upon in any individual case. Please consult an attorney licensed in your state for legal advice and/or representation. These materials were prepared by the legal research staff of the Burton Blatt Institute (BBI) at Syracuse University in partnership with the Southeast ADA Center to highlight legal and policy developments relevant to civil rights protections and the impact of court decisions in the Southeast Region under the Americans with Disabilities Act (ADA). These materials are based on federal disability rights laws and court decisions in effect at the time of publication. Federal and state disability rights law can change at any time. In addition, state and local laws and regulations may provide different or additional protections. Materials are intended solely as informal guidance, and are neither a determination of your legal rights nor responsibilities under the ADA or other federal, state, and local laws, nor binding on any agency with enforcement responsibility under the ADA. The accuracy of any information contained herein is not warranted. Any links to external websites are provided as a courtesy and are not intended to nor do they constitute an endorsement of the linked materials.