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“ORDERING AN EMPLOYEE TO OBTAIN COUNSELING IN ORDER TO KEEP HIS/HER JOB”

Can an employer order a troubled employee to obtain psychological counseling as a condition for keeping his/her job?

The Sixth Circuit Court of Appeals has answered that such a request requires compliance with the Americans With Disabilities Act (ADA) as a request for a medical examination limited by all of the usual ADA restrictions on employers. Kroll v. White lake Ambulance Authority.

Emily Kroll worked as an EMT and was considered to be a good employee until becoming romantically involved with a co-worker, after which her supervisor and office manager received reports from other employees about Kroll’s “well being.”

A few days later, Kroll was reportedly “screaming” on the phone with a male acquaintance while she was driving a patient in her ambulance in “emergency status” (with lights and sirens).   The employer told Kroll that she must attend mental health counseling in order to keep her job. Kroll rejected counseling, left the meeting, and never returned to work.

Was the order to obtain counseling a request for a “medical exam” that violated the ADA? The employer said that this was not a request for a “medical exam” within the meaning of the ADA, but normal discipline.

Under the ADA, employees can be instructed to undergo medical exams only in certain limited circumstances, and only if the exam is confined to “job-relatedness” and “business necessity.” If the order to obtain counseling was a “medical exam” request, it would have to be narrowly tailored and justified according to ADA’s few exceptions.

The Court found that  a psychological test designed to reveal mental illness or to diagnose mental health issues is a “medical examination” under the ADA because the “uncovering of mental-health defects at an employer’s direction is the precise harm that [the ADA] is designed to prevent . . . .”

The Court reversed and returned the case to the trial court for a determination of whether the employer’s request for medical examination of Kroll was job-related or was based upon a business necessity.

In summary, an employer can order an employee to obtain counseling under the ADA, but the facts known and suspected should be reviewed so that the order can be carefully limited to comply with the narrow ADA-approved grounds for requiring a “medical exam”.