The US Court of Appeals for the Sixth Circuit issued an opinion in Kroll v. White Lake Ambulance Authority on August 22, 2012. A key litigated issue was whether the employer's requirement that an employee undergo psychological counseling to retain her job constituted a required medical examination under the ADA.

Emily Kroll worked as an Emergency Medical Technician for White Lake Ambulance Authority (WLAA). After she became romantically involved with a co-worker, Kroll's direct supervisor told Kroll she was required to attend counseling to continue working at WLAA. Kroll refused, partly because WLAA would not provide counseling for her free of charge, and did not return to work after meeting with her supervisor.

Kroll filed a sex discrimination complaint with the Michigan Department of Civil Rights and the EEOC, and later filed an ADA complaint with the EEOC. After receiving right-to-sue letters from both agencies, she sued WLAA in federal court under the ADA and Title VII, claiming:

WLAA moved for summary judgment on all three claims. Kroll stipulated to summary judgment on her third claim and did not argue for her second claim. The district court granted WLAA's motion for summary judgment, holding that counseling was not a medical examination under the ADA and therefore WLAA's requirement that Kroll attend counseling did not implicate the ADA. Kroll appealed after the court denied her motion to alter or amend the judgment.

The Sixth Circuit vacated the district court's judgment and remanded the case to the district court, holding as a matter of first impression that psychological counseling constitutes a medical examination under the ADA.

To interpret the term "medical examination," the court looked at the seven-factor test in the EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees, analyzing whether a test or procedure qualifies as a medical examination. The seven-factor test looks at whether the test or procedure:

According to the guidance, one factor may be sufficient to determine whether a procedure is a medical examination. In addition, examples provided by the EEOC suggest an employer's intent in requiring the procedure is not dispositive as to whether the procedure qualifies as a medical examination.

Using the seven-factor test, the court found that the first three factors suggested psychological counseling qualified as a medical examination because:

The court declined to comment on the additional factors since the first three were dispositive of its decision and because it had insufficient information to evaluate the other four factors.

The court also relied on the US Court of Appeals for the Seventh Circuit's opinion in Karraker v. Rent-A-Center, Inc., which held an employer's evaluation of employees using the Minnesota Multiphasic Personality Inventory (MMPI) constituted a medical examination under the ADA because the MMPI is designed, in part, to reveal mental illnesses, and a high score on the test could contribute to a diagnosis of paranoid personality disorder. In this case, as in Karraker, any psychological counseling Kroll underwent was likely to explore whether she suffered from a mental health disability, even if that was not WLAA's intention.

Although the court vacated the decision and remanded the case, it noted that WLAA could be entitled to summary judgment if the district court determined that the counseling was job-related and consistent with business necessity.

In response to WLAA's additional claim that Kroll lacked standing to bring her claim under the ADA because she never underwent counseling and therefore could not demonstrate an injury, the court held that Kroll had standing since her alleged an injury, termination of her employment, was proximately caused by a violation of the ADA.

The court's decision establishes that psychological counseling qualifies as a medical examination under the ADA in the Sixth Circuit. In light of this decision, employers in the Sixth Circuit that require an employee to undergo psychological counseling should: