Sexy ADA issue: Bad breakup may not justify employer-mandated medical exam

Anna Karenina. Those eyes should have been a tip-off.

Rarely does one get a case that involves a cutting-edge Americans with Disabilities Act issue combined with wild, crazy, passionate, irrationally exuberant, tempestuous, adulterous romance. Well, folks, today is your lucky day.

Should we start with the sex, or with the ADA issue? Oh, heck - let's start with the sex.

Emily Kroll, an Emergency Medical Technician working for White Lake Ambulance Authority in Michigan, fell head over heels in love with her co-worker, Joshua Easton, who was married. Ms. Kroll and Mr. Easton had a tumultuous relationship, which included "frequent arguments," and text messages and emails from Ms. Kroll, and a lot of screaming and crying on Ms. Kroll's part. Not surprisingly (just reading between the lines here), Mr. Easton apparently elected to stay with his wife. Ms. Kroll didn't take that too well -- in fact, she took it so poorly that her co-workers began to worry about her emotional stability.

(Sorry - that was it for the sex. Now on to the ADA.)

Enter poor Brian Binns, director of the Ambulance Authority. Director Binns did not feel that Ms. Kroll was leading a healthy lifestyle. In fact, he felt that "her life was a mess" and would continue to be if she continued with her immoral behavior. So he told her -- I'm sure in a kind, fatherly way -- that she might get raped if she kept picking up strange men in bars was required to get counseling as a condition of continued employment.

Ms. Kroll agreed that she was a mess, but she refused to get the counseling because she couldn't afford it. She turned in her EMT stuff, and that was that.

Fatal Attraction
"I will not be ignored, Dan, and I will not get counseling."

Until she sued under the Americans with Disabilities Act. The Ambulance Authority won summary judgment, but Ms. Kroll took the case up on appeal to the Sixth Circuit, which hears appeals from federal courts in Kentucky, Michigan, Ohio, and Tennessee. A three-judge panel of the Sixth Circuit reversed, which means Ms. Kroll will get a jury trial on her ADA claim.

How could this be?

Under the ADA, an employer cannot require a current employee to have a medical examination unless the examination is "job-related and consistent with business necessity." At an earlier stage of the litigation, the Sixth Circuit had decided (correctly, I think) that the counseling was a "medical examination" within the meaning of the ADA. So the issue on this appeal was whether it was JRACWBN.

Be sure to get over to Eric Meyer's The Employer Handbook blog, where he is host of the August Employment Law Blog Carnival, Instagram Edition. It's picture perfect!

The Ambulance Authority argued that it was. Ms. Kroll was indeed a mess, even by her own admission. And arguably (definitely!) an EMT ought to be mentally stable. The trouble was, most of the crying, screaming, etc., was taking place during non-working hours. But, wait! the Ambulance Authority said. She was also crazy at work -- she used her cell phone in the ambulance (while driving), which is a violation of the rules, and she refused to administer oxygen to a patient when asked by her partner!

The trouble was, Director Binns knew of only one cell phone incident when he ordered Ms. Kroll to get counseling (her co-workers said there were many more such incidents, but apparently Director Binns didn't know about them, and it was his state of mind that mattered).

Play Misty for Me.Jessica Walter
"No, Dave, I'm calling from a land line! I promise!"

The oxygen thing was bad, but apparently no harm was done and Ms. Kroll had never done anything like it before or since. Also, the Ambulance Authority never took any action against her for it (!!!!!), which undercut its contention that this was such a big deal.

In other words, according to the court, there were only two isolated work-related incidents, which weren't necessarily enough to justify a mandatory medical examination. The jury will have to sort it out and decide who's right.

Unfortunately for employers, I think the court interpreted the ADA correctly, for the most part. (I'm not sure I would have given so little weight to Ms. Kroll's unstable behavior during non-working hours, but I think the court's position on that was at least arguably right.) So, what can we learn? Here's what:

Lesson 1: The ADA restrictions on mandatory medical examinations apply to everybody, disabled and non-disabled. If you read the decision, you will see that nowhere does the court talk about whether Ms. Kroll has a "disability" or not. It doesn't matter. Employers are not allowed to mandate medical examinations of any employee unless the examinations are JRACWBN. (Or part of a voluntary wellness program.)

Lesson 2: "Immoral behavior" is usually not going to be a legal justification for a mandatory medical examination, and might even get you a judicial smackdown. The court was pretty hard on poor Director Binns, who probably meant well: "[The] open admission that an employer ordered a medical examination based on moralistic condemnation of an employee's private behavior is troubling, to say the very least."

Lesson 3, related to Lesson 2: No good deed goes unpunished, nice guys finish last, and being an employer is a dirty, thankless job. Director Binns probably would have been fine if he'd just fired Ms. Kroll for refusing to help with the oxygen. He didn't do that, because she was having a hard time and he sounds like a nice guy. Next time, he'll know better.

JRACWBN = "Job-Related and Consistent with Business Necessity"

Lesson 4: If you think you may need to send a troubled employee for counseling, consult with a qualified medical professional first. Another big strike against the Ambulance Authority was that it ordered Ms. Kroll to get counseling based solely on Director Binns's opinion about what she needed. It would have been better if the employer had consulted with a psychiatrist or clinical psychologist to determine, for example, whether Ms. Kroll's non-work behavior might seep into the workplace, and whether counseling was advisable from a JRACWBN standpoint. (CAUTION: this "pre-consultation" does not include sending the employee to be evaluated by the professional. The pre-consultation should be between the employer and the professional only.)

Lesson 5: If you think a fragile employee needs help and the employee can't afford the help, seriously consider paying for it yourself. If you can't afford to pay for the treatment, then at least do what you can to help it be less of a financial burden on the employee. Maybe you can give her a loan, or maybe you can help her qualify for short-term disability benefits while she's being treated. Of course, if you have an Employee Assistance Program, you can always let the employee use that.

According to the court's opinion, it sounds as if Ms. Kroll would have been willing to get counseling if she had had the money to pay for it. Yes, counseling is expensive, but compare it with the Ambulance Authority's attorneys' fees in this case -- two appeals already, and now a jury trial. That's easily six figures, and if Ms. Kroll wins, the employer will have to pay her attorneys' fees as well as whatever the jury awards her. Would counseling cost less than a million dollars? I am betting so. Probably a lot less.


Picture info: Anna Karenina - painting by Henrich Manizer, novel by Leo Tolstoy; Glenn Close as Alex Forrest (bunny killer) in Fatal Attraction (1987); Jessica Walter as Evelyn in Play Misty for Me (1971), which, by the way, was Clint Eastwood's directorial debut. (We knew Jessica Walter was trouble way before Arrested Development.)

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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