Clarification of "Job-related and Consistent with Business Necessity" Standard for ADA Medical Examination: Sixth Circuit | Practical Law

Clarification of "Job-related and Consistent with Business Necessity" Standard for ADA Medical Examination: Sixth Circuit | Practical Law

In Kroll v. White Lake Ambulance Authority, the US Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the employer in an Americans with Disabilities Act (ADA) case, holding that a genuine issue of fact exists with regard to whether the mandated counseling was "job-related and consistent with business necessity" and clarifying this standard.

Clarification of "Job-related and Consistent with Business Necessity" Standard for ADA Medical Examination: Sixth Circuit

by Practical Law Labor & Employment
Published on 26 Aug 2014 • USA (National/Federal)
In Kroll v. White Lake Ambulance Authority, the US Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the employer in an Americans with Disabilities Act (ADA) case, holding that a genuine issue of fact exists with regard to whether the mandated counseling was "job-related and consistent with business necessity" and clarifying this standard.
On August 19, 2014, in Kroll v. White Lake Ambulance Authority, the US Court of Appeals for the Sixth Circuit reversed summary judgment in favor of the employer in an ADA case, holding that a genuine issue of fact exists with regard to whether the counseling mandated by the employer was "job-related and consistent with business necessity" and clarifying this standard (13-1774, (6th Cir. Aug. 19, 2014)).

Background

Emily Kroll worked as an emergency medical technician (EMT) for the White Lake Ambulance Authority (WLAA). Kroll had never been formally disciplined for rules violations. Kroll became involved in a relationship with a married co-worker and began acting emotionally as the relationship soured. Several co-workers witnessed them arguing and some encountered Kroll upset at work.
Brian Binns, WLAA's director became concerned with Kroll's condition, particularly after a report that Kroll used her cell phone while operating an ambulance, which is prohibited. Several co-workers said they reported frequent instances of Kroll using her cell phone while driving. However, at his deposition, Binns recalled only one complaint of this offense.
In April 2008, an altercation between Kroll and a paramedic during an ambulance run led to an accusation that Kroll failed to communicate with the paramedic and assist her in administering oxygen to the patient. Binns told Kroll that he wanted her to undergo counseling (which WLAA would not pay for) to continue her employment with WLAA. Binns testified that he ordered counseling because he:
  • Thought Kroll's life was a mess.
  • Thought he could help Kroll.
  • Was concerned about her personal life and sexual relationships.
Kroll did not pursue counseling because she could not afford it. As a result, she turned in her equipment and did not take on any more shifts with WLAA.
In July 2009, Kroll filed a complaint against WLAA, alleging that the company violated the ADA by forcing her to submit to a medical exam that was not job-related and consistent with business necessity. WLAA moved for summary judgment, arguing that the counseling requirement:
  • Was job-related.
  • Was consistent with WLAA's business necessity.
  • Did not violate the ADA.
The district court granted summary judgment to WLAA on the grounds that counseling alone did not constitute a medical examination under the ADA, so there could be no ADA violation. The Sixth Circuit reversed the grant of summary judgment on that issue, holding that a reasonable jury could conclude that WLAA's instruction of psychological counseling constituted a medical examination under the ADA (see Legal Update, Psychological Counseling Qualifies as a Medical Examination under the ADA: Sixth Circuit).
On remand, WLAA renewed its motion for summary judgment, arguing that even if the counseling is a medical examination, the instruction was permissible under the ADA because Kroll's behavior negatively affected her job performance. The district court granted summary judgment again for WLAA, holding that WLAA's requirement that Kroll attend counseling was:
  • Job-related.
  • Consistent with WLAA's business necessity.
The district court noted that Kroll's co-workers' complaints to Binns regarding Kroll's emotional health gave him evidence that:
  • Kroll's emotional issues were compromising her ability to do her job safely.
  • Kroll posed a direct threat to her safety and the safety of others, because of her unsafe driving.
Kroll appealed the district court's grant of summary judgment to WLAA.

Outcome

The Sixth Circuit held that evidence existed to establish a factual dispute about whether the counseling required by WLAA was job-related and consistent with business necessity. The Sixth Circuit therefore reversed the district court's grant of summary judgment and remanded to the district court.
The Sixth Circuit found that:
  • The ADA prohibits an employer from requiring a medical examination unless that examination is shown to be job-related and consistent with business necessity (42 U.S.C. § 12112(d)(4)(A)).
  • The employer bears the burden of proving that a medical examination is job-related and consistent with business necessity by demonstrating that:
    • the employee requests an accommodation;
    • the employee's ability to perform the essential functions of the job is impaired; or
    • the employee poses a direct threat to himself or others.
    (Denman v. Davey Tree Expert Co., 266 F. App'x 377, 379 (6th Cir. 2007).)
  • To meet the business necessity standard, an employer that requires a medical examination must reasonably believe, based on objective evidence, that the employee's behavior is a threat to a vital function of the business (Wurzel v. Whirlpool Corp., 482 F. App'x 1, 12 (6th Cir. 2012)).
  • Since a reasonable jury could believe that Binns made the decision that Kroll's counseling was a condition of her continued employment, the decision to require a medical examination would only be justified if it was reasonably based on Binns' knowledge of objective evidence.
  • A jury could reasonably infer that Binns had only limited knowledge of objective evidence of Kroll's emotional outbursts and rule violations. Particularly, he knew of only:
    • one incident of sub-standard patient care by Kroll; and
    • one incident of Kroll using her cell phone while operating an ambulance.
    Applying the factors from Denman, the Sixth Circuit found that:
  • Kroll did not request the counseling as an accommodation.
  • Regarding any impairment of Kroll's ability to perform the essential functions of her job:
    • there is evidence that Kroll displayed emotional behavior;
    • a reasonable jury could find that Kroll's outbursts outside of the presence of patients did not impair her ability to perform essential job functions;
    • a reasonable jury could find that due to his awareness of only two isolated incidents, Binns could not reasonably conclude that Kroll was unable to perform the essential functions of her job; and
    • if Binns had seen a pattern of behavior, rather than only two isolated incidents, he might have been justified in ordering a medical examination.
  • Regarding Kroll posing any direct threat to herself or others:
    • such a direct threat is created when a risk is created to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation (42 U.S.C. § 12111(3));
    • assessing the risk must be based on a reasonable medical judgment that relies on current medical knowledge or the best available objective evidence;
    • the court should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of the potential harm (29 C.F.R. § 1630.2(r));
    • a reasonable jury could find that emotional behavior and distractions could endanger an individual and others;
    • a reasonable jury could find that due to his awareness of only two isolated incidents, Binns could not reasonably conclude that Kroll was a significant risk to the health or safety of herself or others;
    • if Binns had been aware of a pattern of behavior in which Kroll had outbursts while driving or providing medical care, he may have been justified in finding that Kroll posed a direct threat to safety;
    • Binns appears to have made his judgment based on his moral concern and convictions regarding Kroll's sexual relationships; and
    • if Kroll did pose a safety risk, a reasonable jury could find that Binns was unjustified in ordering her to have a medical examination, because he did not make his decision based on reasonable medical judgment.

Practical Implications

The Sixth Circuit held that an employer that orders a medical examination violates the ADA unless the examination is job-related and consistent with business necessity under the ADA. An employer ordering such an examination cannot do so based on moral or emotional factors. It must use medical knowledge or have sufficient evidence to determine that an individual is a threat to themselves or others or that the employee's ability to perform essential job functions is impaired. One or two isolated incidents do not provide enough evidence to adequately conclude, without some remaining dispute of material fact, that either of these has occurred. Employers should assess their true justification for ordering medical examinations to ensure that they are legally viable and not a product of moral or emotional judgment.