On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. West Lake Ambulance Authority, ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act.

The ADA states:

“A covered entity shall not require a medical examinationand shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The plaintiff had had an affair with a co-worker and after an incident related to that during with which it was reported that the plaintiff had been screaming into her phone while on an emergency run, her supervisor required her to undergo psychological counseling before returning to work.  She refused and never returned to work.  A suit was filed claiming, among other things, an ADA violation. The district court granted summary judgment dismissing the case and the former employee appealed.

The appellate court in reaching its decision relied heavily on EEOC guidance.  That guidance consists of seven factors:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment or physical or

mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or

measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting; and,

(7) whether medical equipment is used.

The court found that factors one, two and three were present, and reversed and remanded the case to allow more development of a record as to the remaining factors.