By Judy Greenwald
Aug. 28, 2012
An ambulance service that told a worker to get psychological counseling violated the Americans with Disabilities Act, because it fell under an ADA requirement that only permits firms to send employees for medical exams under narrow circumstances, says a federal appeals court in overturning a lower court ruling.
According to the August 22 ruling in Emily Kroll v. White Lake Ambulance Authority, in 2008 the ambulance service became concerned about the behavior of Kroll, an emergency medical technician, after she became romantically involved with one of her co-workers.
In April 2008, while Kroll was driving an ambulance loaded with a patient during an emergency, she screamed at a male acquaintance over her cell phone, according to the ruling.
After that incident, in a meeting, a supervisor told her to “see a psychologist to discuss issues related to her mental health,” said the ruling. Kroll left the meeting and did not return to work. She filed suit against the Whitehall, Michigan-based ambulance service in May 2008 on charges including violation of the ADA.
In June 2010, a lower court granted White Lake summary judgment dismissing the charges, concluding “counseling alone does not constitute a medical examination under the ADA.”
The appellate court disagreed in its 2-1 ruling. The court said Kroll has presented sufficient evidence that a reasonable jury could conclude the psychological counseling Kroll was instructed to attend constituted a medical exam under the ADA.
“We reach this conclusion … because the ‘psychological counseling’ in question was likely to probe and explore whether Kroll suffered from a mental health disability, regardless of whether this was (the ambulance service’s) intention.”
The case was remanded to the lower court to determine whether the order to obtain counseling was “job related” and consistent with “business necessity,” under which circumstances it is permitted under the ADA.
Commenting on the ruling, Maria Danaher, a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Pittsburgh, who represents employers and was not involved in the case, said it is significant.
“The whole reason for having the ADA requirement that you can’t send someone for a medical exam and then decide to fire them makes sense in this situation” unless “the reason for the mental health examination was business related,” Danaher said also.
The ruling demonstrates that when an employer “decides to require a mental or psychological review of someone’s mental health status they should make sure there’s a business-related reason for doing this. It’s really critical.”
Furthermore, employers should “make sure to document the reason at the time the decision is make to ask for an exam or counseling,” said Danaher.
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