Part 2: When Is Requiring Examination Permissible?

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Now that the Sixth Circuit has said that requiring a worker to get psychological counseling is equivalent to requiring a medical examination under the ADA, the question is when requiring such an examination is permissible anyway. On remand, the trial court tackled this issue in Kroll v. White Lake Ambulance Authority, Case No. 1:09-C-626, decided on May 22, 2013.

Because requiring psychological counseling is the equivalent of requiring a medical examination, the Court had to determine whether it was “job-related and consistent with business necessity.” Kroll worked as an EMT. She was a good employee until she had an emotional affair with a married co-worker, and began behaving emotionally. The Court spent several pages detailing Kroll’s disturbing behavior, which included: shouting or crying at work; using a cell phone and crying while driving an ambulance; using a cell phone and texting while driving an ambulance; and refusing to administer oxygen to a patient.

An employer is permitted to require a medical examination when an employee’s ability to perform essential job functions is impaired, or when the employee poses a direct threat to himself or herself or others due to a medical condition.

After analyzing Kroll’s behavior, the Court concluded that Kroll’s ability to perform her job as an EMT was impaired. In addition, Kroll’s behavior, due to her emotional condition, put both herself and others, including her patients, at risk. The Court commented, “Under these circumstances, no reasonable employer would have thought twice about requiring Kroll to obtain counseling as a condition of retaining her job.” The Court granted summary judgment for Kroll’s employer.

Religious organizations may require counseling that is “job-related and consistent with business necessity” in the same manner as secular organizations. In addition, if the person’s behavior resulting from the medical/mental condition violates the organization’s spiritual and moral standards, requiring counseling may be consistent with business necessity in another sense, because spiritual and moral standards are an essential job function. The organization’s spiritual and moral standards should be well defined in its organizational documents.

In addition, some religious organizations, like mission organizations, have an additional responsibility to their personnel, who may be assigned to places that are dangerous, or at least do not have an adequate infrastructure of support for those having emotional or mental problems. In such situations, requiring counseling for significant emotional problems will likely be consistent with business necessity because of safety concerns for the person or others. These concepts are best explained in advance in personnel documents. Also, a mission organization should handle requiring counseling carefully with the help of psychological and legal counsel. For instance, what an organization can require for a worker in a less developed or dangerous area may not be the same as a worker stationed in the home office.

While the Sixth Circuit Kroll case is only binding law in Kentucky, Michigan, Ohio, and Tennessee, and the follow-up Kroll case is not precedential, both are a helpful analysis for organizations wondering when they can require counseling.