Telling an Employee to Attend Psychological Counseling May Violate the ADA

Darrell VanDeusen
Darrell VanDeusen

Emily Kroll was working as an EMT for White Lake Ambulance (WLA) when her supervisor began to get reports from employees about concerns over Kroll’s well being. The supervisor also  received a complaint that Kroll had screamed at a “male acquaintance” on the phone while driving a vehicle with a patient in emergency status. The supervisor told Kroll to attend counseling if she wanted to continue working at WLA.  She said “no” and left the company.  Kroll then sued for, among other things, and alleged violation of Section 12112(d)(4)(A) of the ADA, which prohibits covered employers from requiring a “medical examination” to reveal whether an employee has a disability.

The trial court found in favor of WLA, but on appeal the Sixth Circuit (in a 2-1 decision) reversed, letting the ADA claim proceed.  Kroll v. White Lake Ambulance Auth., 2012 U.S. App. LEXIS 17727 (6th Cir. August 22, 2012).  Noting that the meaning of “medical examination” was an issue of first impression, Judge Moore wrote that the EEOC’s enforcement guidance issued in 2000 was the “best interpretive aid” available. Judge Moore found that the counseling demanded of Kroll would have been administered and interpreted by a health care professional and was designed to uncover any mental health impairment Kroll might have.

Judge Sutton dissented, reasoning that a requirement to obtain psychological counseling does not constitute a requirement to obtain a medical examination.  He found no evidence to show that WLA “insisted that Kroll’s psychological counseling involve one type of test or another.”


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