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Was Employee's Psychological Exam an Unreasonable Requirement?

A Michigan appeals court thinks so, ruling that an employer violated the ADA by directing an erratic employee to undergo a psychological evaluation. To keep the company on safe legal ground, experts suggest that HR focus on showing how such conduct affects an employee's performance rather than trying to determine the behavior's root cause.

Tuesday, September 25, 2012
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When a worker displays increasingly unhinged behavior on the job, you may think that steering them toward psychological counseling is in the best interest of your employee and your organization. But be warned: making such a move could put your company on the wrong end of a disability lawsuit.

The U.S. Court of Appeals for the Sixth Circuit recently found that psychological counseling qualifies as the type of exam designed to diagnose mental health issues or reveal a mental illness that, under the Americans with Disabilities Act, employers are prohibited from requiring employees to undergo. The ruling sends the case back to a lower court to determine the "business necessity" of an employer's request ? and subsequent demand -- that an employee seek psychological counseling after a series of emotional outbursts at work.

The employee, Emily Kroll, was an emergency medical technician with Whitehall, Mich.-based White Lake Ambulance Authority, where she had generally been regarded as a "good EMT" and "good employee" by direct supervisor Brian Binns, according to court documents.

Kroll's behavior and standing as an employee in good stead reportedly changed, though, when she became romantically involved with a married co-worker. In 2008, Binns and office manager Jean Dresen began to receive reports from Kroll's colleagues expressing their concern for her mental well-being. On the heels of those reports, Dresen suggested that Krolls see a mental health professional -- a request that Krolls ultimately declined.

Within days of that discussion, however, Kroll got involved in a cell phone screaming match with a male acquaintance -- while she was driving an ambulance with a patient in the back, during an emergency situation. In a meeting after that incident, Binns told Kroll that she "must attend counseling in order to continue working at WLAA," court records indicate.

Kroll allegedly told Binns that she would not attend counseling, left the meeting and did not return to work with the company. She subsequently filed a lawsuit on charges that included a violation of the ADA. A lower court dismissed the charges, but an appellate court ruled that Kroll had presented enough evidence that a jury could conclude the counseling Kroll was directed to attend constituted a medical exam under the ADA.

The appellate court ruling should remind HR leaders that requiring or even requesting that an employee undergo a psychological evaluation sends an organization into uncertain legal territory, says Maria Danaher, a Pittsburgh-based attorney with national labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

"A mental-health exam could lead to an individual turning over information about an impairment or mental condition," she says. "And that's just the type of information the ADA prohibits [employers from seeking]."

And, whether the organization is actually looking to uncover such information is immaterial in the eyes of the law, adds Danaher.

"Whether or not you believe [an employee] is disabled, if you're sending her for the advice of a healthcare or mental healthcare provider, it could be argued that you saw them as disabled."

White Lake Ambulance Authority may simply have been trying to help an employee perform her job properly, Danaher points out. The court, however, determined that a psychological test can still qualify as a medical examination, even if a company's intentions are "disability neutral."

Whatever the motive for doing so, employers and HR leaders are largely prohibited from making requests of employees that may -- even inadvertently -- reveal an employee's pre-existing mental condition or impairment. The exception, however, is if the organization can prove that the exam is job-related and consistent with business necessity.

For HR professionals who need to show that connection, the focus should remain on how the employee's behavior affects his or ability to perform the job, rather than the potential reasons why the behavior is occurring, says Stephen Sheinfeld, partner and head of Winston & Strawn's labor and employment relations practice group in New York.

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"As an employer, you want to be able to determine the cause of disconcerting behavior, without being exposed to the ADA or disability laws," he says. "Typically, the employer is best advised to focus on the employee's conduct itself as opposed to its root cause."

For example, "let's say you have an employee who's always coming in late," continues Sheinfeld. "It could easily be that the employee just isn't being attentive enough to catch the bus on time, to anticipate traffic, etc. But the 'why' isn't really the issue. Don't question why an employee's coming in late, or whatever the case may be. That's really not your business. Focus on their conduct and how chronic lateness, for instance, affects their job performance. That puts you on much safer legal ground."

And, document instances where an employee's behavior impacted his or her job before you suggest psychological help, either from an outside mental health professional or the company's employee assistance program, he adds.

"As a practical point, when you do go to refer an employee for an exam or psychological counseling, make sure it's job-related and consistent with business necessity, and document it. If an employer decides to make that referral, the basis -- why the organization feels the exam is needed -- must be documented."

Ultimately, the employee must decide whether he or she will attend counseling. If the employee does opt for assistance, and a mental issue requiring accommodation is revealed, HR must take the reins from the immediate supervisor and lead the employee through the counseling process, says Michael Droke, a Seattle-based partner and co-department head of the labor and employment group with Dorsey & Whitney.

"It's important that HR control the interactions with the employee and the healthcare provider. It's a legally complicated analysis, and creates risks that supervisors are not usually equipped to handle," he says. "I often say the employee's supervisor's job is to spot the issue and the need for accommodation. HR's role is to manage it from there."

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