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Forcing an Employee to Seek Counseling to Keep Working May Violate the ADA

How often have employers advised employees that they need help dealing with emotional issues affecting work performance?  Many employers even have an Employee Assistance Program (EAP) designed to assist employees facing such issues.  Although directing employees to obtain assistance – particularly when they may pose a threat to themselves or to others – may be both humanitarian and help to head off workplace violence, a recent court decision suggests that an employer in Kentucky, Ohio, Tennessee and Michigan doing so may be subject to liability under the Americans with Disabilities Act (ADA).

The case

In Kroll v. White Lake Ambulance Authority, the Sixth Circuit Court of Appeals (which hears appeals from federal courts in Kentucky, Ohio, Tennessee and Michigan) ruled that an employer’s requirement that an employee attend counseling in order to continue working (although motivated by concerns about the employee’s ability to safely perform her job) was a request for medical examination generally prohibited under the ADA.  The employer had received reports from Kroll’s fellow employees expressing concerns about her well-being, and it had received a complaint stemming from Kroll’s loud outburst during a phone conversation while transporting a patient on an emergency run.  The employer, concerned that Kroll might be suffering from depression, and fearing that she might commit suicide, instructed her to seek psychological counseling in order to continue working.  Kroll refused (apparently because she did not want to pay for it) and never returned to work.

Kroll brought suit under the ADA, alleging that the employer’s counseling requirement violated the ADA’s general prohibition on medical examinations, which are permitted only when they serve a legitimate business purpose, i.e., they are job-related and consistent with business necessity.  The trial court dismissed Kroll’s claim, concluding that “counseling alone does not constitute a medical examination under the ADA,” without determining whether the request served a legitimate business purpose.  On appeal, the Sixth Circuit noted that the case presented an issue of first impression as to the meaning of “medical examination” under the ADA.

Although concluding that the exact nature of the “counseling” Kroll was instructed to attend was unclear (because it could be construed to include diagnosis of a mental health disability), the court concluded that the counseling request sought a “medical examination” under the ADA.  However, because the lower court did not decide whether the employer’s request served a legitimate business purpose, it sent the case back to the lower court to determine if there was.

A dissenting judge viewed the vague request for counseling differently.  He concluded that a broad request to obtain counseling could merely involve treatment of Kroll’s concerns – without obtaining a medical examination that could diagnose a medical disability.  Because the employer did not dictate the kind of counseling Kroll was to receive, the dissenting judge concluded that Kroll’s ability to meet the requirement on her own terms meant that the employer did not “require” her to obtain a “medical examination.”

Analysis

Employers occasionally consider if they can require employees to receive care when it appears that they pose a threat to themselves or others.  But that request, however well-motivated, may lead to liability under the ADA.  When in doubt, the focus will be whether or not the request is made for a legitimate business purpose.

The Opinion places employers on notice that even seemingly well-meaning requests that employees seek assistance, including insistence that employees avail themselves of an EAP, may now give rise to claims under the ADA if they cannot show there is a business necessity or it is job-related.  Employers are also well aware of the dilemma posed by the need to provide a safe workplace for all employees and the risks that failing to act can present.  To the extent that employers perceive the need to intervene, they must be careful to do so when there is a legitimate business purpose for the request, such as addressing concerns about an employee’s job performance or employee safety.  Consultation with employment counsel would be prudent in order to minimize risk.

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