Concerned Employer may have Violated the ADA by Ordering Employee to Seek Counseling, Sixth Circuit Finds

By Kate Acheson

In Kroll v. White Lake Ambulance Authority, the Sixth Circuit found that an employer’s order for an Emergency Medical Technician (“EMT”) to attend counseling for suspected depression may have been an impermissible “medical examination” in violation of the Americans with Disabilities Act (“ADA”).  The case was remanded to determine whether an ADA exception allowing “job related” medical examinations that are consistent with a “business necessity” applies.

In 2008, White Lake Ambulance Authority (“WLAA”) received several concerned comments about Emily Kroll, an EMT employed by WLAA.  An office manager initially suggested Kroll seek counseling.  Days later, a coworker reported that Kroll had been arguing loudly on the phone while driving an ambulance back to the hospital with a patient.  Fearing Kroll was suffering from depression that might affect her work, Kroll’s supervisor ordered her to seek counseling “to discuss issues related to her mental health.”  Kroll refused, apparently due to her inability to pay, and lost her position.

Kroll filed suit, alleging the counseling constituted a medical examination in violation of the ADA, 42 USC §12112(d)(4)(A).  The District Court granted summary judgment in favor of WLAA and Kroll appealed. On appeal, the Sixth Circuit vacated the summary judgment because the counseling order may have constituted a prohibited medical examination.

The Sixth Circuit was persuaded by guidance from the Equal Employment Opportunity Commission’s guidance interpreting the intent of the ADA’s ban on medical examinations as an attempt to:

[Prevent] discrimination by precluding employers from obtaining information about “nonvisible disabilities, such as… mental illness,” and then taking adverse employment actions “despite [an individual’s] ability to perform the job.”

Using this guidance to analyze the counseling in the present case, the Court found that the nature and extent of counseling Kroll was demanded to seek – “to discuss issues related to her mental health” – would likely have been improperly aimed at uncovering depression, a mental-health defect.

Because the ADA intended to prevent uncovering nonvisible disabilities such as mental health defects, the Court found that Kroll had presented enough evidence for a reasonable jury to conclude that the counseling constituted an impermissible “medical examination.”  However, the Sixth Circuit still remanded the case because it was unclear whether an exception to the ADA permitting “job related” medical examinations that are consistent with a “business necessity” might still apply.