Is employer ordered counseling a medical appointment and therefore restricted by the Americans with Disabilities Act (42 USC 12112(d)(4)(A)) which does not allow employers to compel employees to submit to medical examination except in specific circumstances?
Emily Kroll was employed as an emergency medical technician by the White Lake Ambulance Authority. She was well-regarded by her co-workers until she became romantically involved with a fellow employee at which time complaints were lodged against her with her supervisor and the office manager. The office manager requested she seek counseling. There is some question as to whether the possibility of financial assistance from the Red Cross to pay for the counseling was mentioned and to whom Kroll was referred. After a subsequent dispute between Kroll and another employee, the counseling request was changed to a requirement of her continued employment. Kroll informed her supervisor that she would not attend counseling and left the company. Later, Kroll claimed it was the cost that prevented her from undergoing counseling.
Kroll filed a complaint with the U.S. Equal Employment Opportunity Commission alleging ADA violations, was issued a right to sue letter, and filed suit. Summary judgment was awarded to her employer because the court concluded it did not intend the counseling to be considered medical. The appeals court directed that the employer’s intent alone did not determine whether counseling, tests, or appointments are medical in nature. An EEOC Enforcement Guidance, while not binding law, is considered by the courts to be a persuasive authority. The guidance offers a seven-part test to determine whether an appointment is medical. The appeals court reviewed the counseling requirement in light of the seven-part test and found it to be medical in nature. Based on this finding, the case was remanded to the lower court to resolve whether it fell into one of the ADA exceptions that allowed employers to require medical treatment.
Counseling is a medical appointment and the determination as to whether it can be required for employment is dependent on whether it is “job related” and consistent with a “business necessity” as described in the ADA.
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