Employer Violated ADA by Deciding on the Basis of Moral Convictions That Employee Must Undergo Counseling

Category: Private Education Matters
Date: Dec 23, 2014 05:09 PM

In 2003, Emily Kroll began working as an emergency medical technician for White Lake Ambulance Authority (WLAA) in Whitehall, Michigan.  She never faced any formal disciplinary action.  In 2007, she began an affair with a married coworker, Joshua Easton.  They frequently argued, and the arguments began to affect Kroll's behavior at work.  One coworker found Kroll crying in the parking lot, and other coworkers allegedly observed Kroll arguing with Easton on her cell phone or sending text messages while she drove the ambulance.  Easton claimed that Kroll sent him frequent text messages and emails and screamed at him over the phone while he was working.  The Director of WLAA, Brian Binns, and the WLAA office manager, Jean Dresen, discussed their concerns regarding Kroll's behavior, and Binns directed Dresen to identify a mental health professional who could help Kroll.  Dresen told Kroll that Binns wanted her to seek counseling.  Dresen offered to help find Kroll a counselor, but stated that WLAA would not pay for therapy.  Kroll did not seek counseling. 

Not long after this conversation, Kroll and a female paramedic were working together.  Kroll and the paramedic did not get along, as Kroll had accidentally forwarded to the paramedic an email in which she asked Easton if he was in a sexual relationship with the paramedic.  While on a patient run together, the paramedic called Kroll a "whore."  As they treated a patient, the paramedic asked Kroll to help her administer oxygen, but Kroll ignored the request.  The paramedic complained to Binns that Kroll had refused to communicate regarding a patient's care.  

Binns met with Kroll and informed her that she could only continue her employment at WLAA if she agreed to get counseling.  Kroll agreed that she had emotional problems and might benefit from counseling, but could not afford to pay for it.  Kroll turned in her equipment and was not scheduled for any further shifts. 

At his deposition, Binns admitted that he did not have a problem with Kroll in regards to her patient care.  Rather, he was concerned about Kroll's personal life and sexual relationships, and attempted to compel counseling because he thought that he could help her.  At one point, Binns told Kroll that she needed counseling because of her "immoral personal behavior."  Neither Binns nor Dresen consulted with a psychologist or mental health professional before attempting to force her into counseling. 

Kroll filed a lawsuit against WLAA alleging that it violated the Americans with Disabilities Act (ADA) by requiring her to submit to a medical examination that was not job-related or consistent with business necessity.  WLAA filed a motion for summary judgment, which the trial court granted on the basis that counseling is not a medical examination under the ADA.  The Court of Appeals for the Sixth Circuit reversed and remanded, concluding that psychological counseling constituted a medical examination under the ADA.  On remand, the trial court granted WLAA's motion for summary judgment, this time on the basis that the examination was permissible because Kroll's behavior was negatively affecting her work performance.  Kroll appealed, and the Court of Appeal for the Sixth Circuit reversed. 

The ADA prohibits an employer from requiring a medical examination unless it is shown to be job-related and consistent with business necessity.  To prove that an examination is job-related and consistent with business necessity, the employer must demonstrate that (1) the employee has requested an accommodation; (2) the employee's ability to perform the essential functions of the job is impaired; or (3) the employee poses a direct threat to himself or others. 

Because Binns made the decision to compel Kroll to undergo counseling, the Court focused its inquiry on the objective evidence known to Binns.  The record indicated that Binns knew of one incident during Kroll's employment when she provided substandard care to a patient.  He admitted that he never had a problem with Kroll's patient care, and Kroll was never formally disciplined for any reason. While some coworkers allegedly observed Kroll texting while driving, Binns could only recall one employee reporting that Kroll used her cell phone while driving.  Therefore, the Court had to decide whether these two incidents provided sufficient objective evidence upon which Binns could decide that a medical examination was job-related and consistent with business necessity.  Because Kroll never requested an accommodation, the Court analyzed whether Kroll's ability to perform essential job functions was impaired or whether she posed a direct threat to herself or others. 

To justify an examination, there must be genuine reason to doubt whether the employee can perform job-related functions.  While the record contained ample evidence of Kroll's irregular emotional behavior, this evidence is only relevant to the extent it interfered with her ability to administer medical care and safely transport patients.  As the record only contained one incident of refusing to administer oxygen and one incident of using a cell phone while driving, a jury could not reasonably conclude that Kroll was unable to perform the essential functions of her job.

An assessment of whether an employee poses a direct threat must be focused on the individual's abilities and job functions and "based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence."  In workplaces where the employees respond to stressful situations and are responsible for public safety, an employer may rely on less evidence to justify a psychological examination than in other workplaces because of the tremendous risk of harm if an employee acts irrationally.  Kroll could endanger herself and others if she drove while distracted or succumbed to an emotional outburst while providing medical care.  However, Binns only had evidence of two isolated incidents. 

Further, even if Kroll posed a safety risk, Binns did not make his decision based on a reasonable medical judgment.  While the law is not clear regarding what "reasonable medical judgment" is, an employer must do more than follow its own intuition regarding the risk an employee poses.  In this case, there was no evidence that Binns made any type of medical judgment at all. Rather, the evidence demonstrated that Binns made his decision based on moral convictions. 

Therefore, the Court held that a jury could reasonably determine that Binns lacked sufficient evidence to conclude that Kroll was impaired in the performance of her essential job functions or that she posed a direct threat to the safety of others.  Accordingly, there is a genuine issue of material fact as to whether the counseling was job-related and consistent with business necessity, and the trial court erred when it granted WLAA's motion for summary judgment.  The Court reversed and remanded.  

NOTE: 

The decisions of the Court of Appeals for the Sixth Circuit do not have to be followed by the Court of Appeals for the Ninth Circuit, which has jurisdiction over California.  However, the Ninth Circuit may consider this decision if faced with a similar issue. 

In our October 2014 Private School Matters, we reported on the case of Kao v. University of San Francisco (2014) 229 Cal.App.4th 437, in which the California Court of Appeal held that the University of San Francisco did not violate the Fair Employment and Housing Act when it required a professor to undergo a fitness for duty evaluation because the evaluation was job-related and consistent with business necessity.  In that case, multiple members of the faculty testified that they were afraid of the professor and worried about their physical safety when on campus.  Also, unlike in Kroll, the University consulted with an expert on threat assessment and fitness-for-duty evaluations, who stated that the University had an obligation to provide a safe working environment, and that the only way to assess whether the professor could safely perform his job was to have an independent medical exam by an independent physician.  Schools should carefully document incidents that indicate an employee may not be able to perform essential job duties and seek legal counsel to consider if the incidents are sufficient to justify a fitness for duty examination.

A jury in Kansas recently found that a city violated the ADA when it terminated a police officer who suffered from sleep apnea, and the court ordered the city to pay the officer nearly $1 million for lost wages and emotional distress.  The city allegedly terminated the former officer, in part, because he fell asleep on shift on several occasions.  The officer was diagnosed with severe sleep apnea, but began treating the disorder with medication and a medical device, and according to his complaint, could still perform the essential functions of his position with or without reasonable accommodations. 

Kroll v. White Lake Ambulance Authority (6th Cir. 2014) 763 F.3d 619.

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