Part 3: When Is a Psychological Examination a Business Necessity?

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Requiring an employee to undergo psychological counseling may violate Americans with Disabilities Act as previously discussed in Part 1 and Part 2 about the case of Kroll v. White Lake Ambulance Authority. The Sixth Circuit just issued another opinion in favor of the ambulance driver, Kroll. She had had an affair with a married coworker. During and after this affair, she showed signs of emotional instability. This allegedly affected her work, when she used her cell phone while driving the ambulance and when she refused to administer oxygen to a patient. Her supervisor told her to seek counseling—partly on the basis of her immoral behavior. However, he did not offer to pay for counseling.

The Sixth Circuit was not too happy with Kroll’s employer and said there was a factual dispute about whether the counseling was “job-related and consistent with business necessity.” Kroll had endangered a patient once, but only once, which the court did not think was enough to provide evidence of a direct threat. Her boss received one report that she used her cell phone while driving the ambulance and the court did not think that was enough to provide evidence of a direct threat, either. Because there was no “pattern of conduct,” the Sixth Circuit doubted that psychological examination was a business necessity, or at least thought it was a question for the jury.

How can you demonstrate that counseling is “job-related and consistent with business necessity”? You must show one of three things:

1. the employee asks for an accommodation;

2. the employee is impaired in performing essential functions of the job; or

3. the employee is a direct threat to self or others. You must reasonably believe one of these, and it must be based on objective evidence.

Could the employer have handled this in a way that satisfied the court? Perhaps, if the employer had done a few things differently. After all, no one wants to be the one patient that doesn’t get the oxygen, or to picture an ambulance driver chatting away on the phone while running red lights.

• If a medical professional had recommended the examination based on an evaluation of Kroll’s actions, that would have been more objective than proceeding on employer’s intuition.

• If the employer had left his opinion of Kroll’s moral standards and her messed-up life out of it, the court might have accepted the psychological examination. (Or, if the employer was a religious organization that had definite moral standards stated in a policy, that would also have worked.)

• Finally, although the court did not say so, it might have been more impressed if the employer had offered to pay for the psychological counseling. Given that Kroll actually wanted the counseling but said she could not afford it, being a little more generous might have avoided this expensive litigation entirely.