Counseling Refused by Employee Could Be Considered ‘Medical Examination' Under ADA

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Psychological counseling that an ambulance agency ordered an emergency medical technician to undertake could be considered a “medical examination under the Americans with Disabilities Act,” the U.S. Court of Appeals for the Sixth Circuit held Aug. 22 in a 2-1 decision reviving the former employee's claim (Kroll v. White Lake Ambulance Auth., 6th Cir., No. 10-2348, 8/22/12).

The appeals court vacated and remanded a district court's ruling for White Lake Ambulance Authority on Emily Kroll's claim that WLAA breached 42 U.S.C. § 12112(d)(4)(A), which prohibits covered employers from requiring a “medical examination” to reveal whether an employee has a disability.

Noting that the meaning of “medical examination” was an issue of first impression in the Sixth Circuit, Judge Karen Moore wrote for the court that an enforcement guidance issued by the Equal Employment Opportunity Commission in 2000 was the “best interpretive aid.” Multiple factors identified by the enforcement guidance weighed in favor of the counseling WLAA requested being a “medical examination,” Moore found. Specifically, she said, the counseling would have been administered and interpreted by a health care professional and was designed to uncover any mental health impairment Kroll might have had.

Judge Jeffrey Sutton wrote a separate dissenting opinion in which he reasoned that a requirement to obtain psychological counseling does not constitute a requirement to obtain a medical examination. He said no evidence demonstrated that WLAA “insisted that Kroll's psychological counseling involve one type of test or another.”

Employees Questioned Kroll's Mental Health.

Kroll began working for WLAA as an EMT in 2003. Her supervisor Brian Binns began to receive reports of other employees' concerns about Kroll's well being after she became romantically involved with a co-worker.

In an April 28, 2008, meeting with Kroll and her father, Binns notified Kroll that he had received a complaint that she had screamed at a “male acquaintance” on the phone while driving a vehicle that contained a patient and was in emergency status.

Binns told Kroll she needed to attend counseling to continue working at WLAA. She replied that she would not do so--later testifying that her refusal was because she would have to pay for any counseling out of pocket--and ultimately did not return to work for the agency.

Kroll sued WLAA in the U.S. District Court for the Western District of Michigan. She claimed that WLAA's counseling demand itself violated the ADA. Under Section 12112(d)(1), the statute's bar against disability discrimination “shall include medical examinations and inquiries.” Section 12112(d)(4)(A) stipulates that an ADA-covered employer “shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

Kroll alleged that WLAA required her to receive psychological counseling in particular. Although the agency argued that it did not specify that the counseling be psychological in nature, Binns testified that he had psychological counseling in mind.

The district court found that “counseling alone does not constitute a medical examination under the ADA.”

Court Relies on EEOC Enforcement Guidance.

Determining that the ADA's legislative history offered “little insight” into the meaning or scope of the term “medical examination,” the appeals court turned to EEOC's 2000 Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act.

The enforcement guidance defines “medical examination” as a “procedure or test that seeks information about an individual's physical or mental impairments or health” and provides seven factors for assessing whether a test amounts to a “medical examination.” Those factors include whether the test is administered by a health care professional, is interpreted by such a professional, is aimed to reveal a physical or mental health impairment, is invasive, measures an employee's performance of a task or physiological responses to such performance, is typically given in a medical setting, or involves medical equipment. The enforcement guidance said a single factor “may be enough” to find that a test is medical.

Additionally, the court pointed to other EEOC guidance indicating that an employer's purported intent--for instance, its statement that it gives a psychological test to reveal personality traits and not to uncover mental illness--is not of paramount significance in the analysis of whether the test is a “medical examination.”

The court applied the seven factors in the enforcement guidance to the “counseling” WLAA directed Kroll to attend, having accepted her assertion, supported by Binns, that the counseling was meant to be psychological in nature. A reasonable jury could conclude that a psychologist would administer the counseling and interpret its content to some extent, the court decided.

It then said a jury could reasonably find that the counseling WLAA requested was the type meant to uncover a mental health impairment.

“WLAA does not dispute that it was concerned about Kroll suffering from depression, to the point of suicidal ideation, and Binns stated in his deposition that he instructed Kroll to go to the counseling 'to discuss issues related to her mental health,' ” the court said. “These facts are sufficient for a reasonable jury to conclude that WLAA intended for Kroll to attend counseling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment.”

By Elliott T. Dube  

Text of the opinion is available at