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Psychological Counseling May Constitute a Medical Examination Under the ADA

By Jillian M. Collins

Last week, in a case of first impression titled Kroll v. White Lake Ambulance Authority, the Sixth Circuit found that psychological counseling may qualify as a “medical examination” under the Americans With Disabilities Act (“ADA”), which forbids employers from requiring medical exams unless they are job-related. The Circuit Court vacated the lower court’s ruling in favor of White Lake Ambulance Authority on summary judgment in a discrimination case brought by Emily Kroll, a former employee.  Kroll had refused to attend psychological counseling mandated by White Lake after other employees reported concerns about Kroll’s well-being and White Lake received a complaint that Kroll had been screaming at a male acquaintance on her cell phone while driving an ambulance in emergency status with lights and sirens.  The district court found that such psychological counseling alone did not constitute a medical examination.

The Circuit Court disagreed, differentiating between psychological tests designed to identify a mental disorder or impairment, which do constitute medical examinations under the ADA, and psychological tests that measure personality traits or make vocational predictions, which do not constitute medical examinations.  The Court relied on the EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees (“EEOC Guidance”), which provides a seven-factor test for analyzing whether a test or procedure qualifies as a medical examination.  The factors include: (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; (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.

Any one of these factors may be enough to support a finding that the activity is a medical examination, according to the EEOC Guidance.  The Court found that the first two factors were clearly present in the psychological counseling mandated by White Lake.  The Court evaluated the third factor, whether the test is designed to reveal an impairment or physical or mental health, in closer detail, recognizing that psychological counseling is not always targeted to an actual mental-health diagnosis.  Ultimately, however, the Court stated that when an employer requires an employee to go to the counseling “to discuss issues related to her mental health,” a reasonable jury could find that such counseling constituted a medical examination under the seven-factor test.  The Court did not discuss the other four factors because the first three factors would be sufficient for a jury to find in favor of Kroll.

The Court remanded the case because there was a factual dispute around whether the counseling was intended to be “psychological” (and, therefore, related to mental health), and, more importantly, because the district court did not hear argument or decide on the question of whether the counseling was job-related and in line with business necessity.  The Court stated that White Lake may still be entitled to summary judgment if it can show that the counseling was job-related and consistent with business necessity.  Given the Circuit Court’s heavy reliance on the EEOC Guidance, the EEOC’s test for whether a disability-related inquiry or medical examination is job-related and consistent with business necessity may be a focal point in the remanded case.  The EEOC Guidance states that an inquiry or medical examination may be job-related and consistent with business necessity when an employer has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.

All individuals- whether disabled or not- have a private right to sue under the provision of the ADA prohibiting medical examinations.  Employers must take care, therefore, and be mindful of the ADA's job-relatedness and business necessity requirements when demanding, or even recommending, that an employee take part in any type of medical inquiry, psychological counseling, or examination.

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Martha Zackin