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Sixth circuit: mandated counseling may trigger ADA protection

August 31, 2012

Article courtesy of SBAM Approved Partner ASE

By Michael J. Burns  

In a case of first impression, the Sixth Circuit Court of Appeals (which covers Michigan) has ruled that employer-required counseling to identify mental disorders or impairments counts as a medical examination and therefore is protected under the Americans With Disabilities Act (ADA).

The case highlights how important it is for employers to know what constitutes “medical care,” and thus triggers ADA protection, when they direct employees to receive counseling for unacceptable behaviors.

In reaching its ruling, the Sixth Circuit reversed a lower court ruling that the “counseling” an employer directed an employee to get for erratic on-the-job behavior did not trigger protection under the ADA.

The plaintiff-employee, an emergency medical technician, started exhibiting erratic behavior after becoming romantically involved with a co-worker. After a second incident involving a confrontation with another employee in front of a patient, her supervisor told the plaintiff to attend counseling in order to keep her job. The plaintiff refused, left her job and then brought this lawsuit alleging a number of discrimination issues. The court dismissed the other issues, leaving only the ADA issue at hand.

The lower court ruled in a Summary Disposition that the supervisor’s direction to get counseling alone did not constitute a medical examination under the ADA. Therefore protection under the ADA was unavailable as a claim.

On appeal, the Sixth Circuit disagreed with the lower court’s ruling.

The initial lawsuit alleged that the demand to attend counseling violated the section of the ADA that protects disabled employees (or those considered disabled) from discrimination. The Sixth Circuit ruled that the act of terminating the employee in proximate causation (i.e., near to the unacceptable behavior[s] in question) and recognition of that fact by requiring a medical examination was a question of fact for a jury to decide. Therefore, the award of Summary Disposition in favor of the employer was incorrect.  

In making its decision, the court looked at the EEOC’s Enforcement Guidance for the ADA, which includes a seven-factor test for deciding whether a procedure or test is “medical” or not. Under that guidance, any one factor that is “medical” can be enough to make a test “medical.” The crucial difference is whether the psychological tests deployed are to measure personality traits or mental disorders or impairments. If the former, then counseling was not “medical”; if the latter, then it was.

The court noted that it is the application of the employer’s mandate to get counseling, which in this case resulted in a medical examination, that matters. It is not the employer’s intent, whatever that might actually be.

Following precedent out of the Seventh Circuit Court of Appeals, this decision strengthens the legal takeaway that if an employee exhibits behavior to the point where an employer recommends some type of counseling that employee may very well be protected under ADA. Many employers who steer their employees to the company’s Employee Assistance Program under these kinds of circumstances need to understand the implications of that decision.

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