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Employer Cannot Force Employee Into Counseling Over Extramarital Workplace Affair

    Client Alerts
  • September 05, 2014
The Americans with Disabilities Act prohibits employers from requiring employees to submit to medical examinations unless the exam is job-related and consistent with business necessity. When an employee begins exhibiting unusual or unexplainable behavior at work, the employer’s inclination is often to require the employee to seek mental health counseling to determine the psychological basis for the issues. However, as demonstrated by a new decision from the Sixth Circuit Court of Appeals, the business necessity standard does not allow insistence upon counseling absent clear impacts of the suspected condition on the employee’s job performance.


In Kroll v. White Lake Ambulance Authority, the plaintiff was an EMT who began a tumultuous affair with a married coworker. She was seen crying at work, and got into a series of arguments with the coworker and another female EMT whom she suspected of also engaging in a relationship with him. After complaints from other EMTs, the employer required the plaintiff to seek psychological counseling. She refused, and was terminated. The plaintiff sued under the ADA, claiming that she was subjected to an improper demand for a medical examination.


The Sixth Circuit agreed, reversing a grant of summary judgment for the employer, and remanding the matter for trial. The employer claimed that the plaintiff’s fragile emotional state presented a risk to patients and to the general public. However, the plaintiff’s supervisor only had very limited and indirect information indicating that her personal problems were affecting her job performance. Moreover, the supervisor had a history of requiring counseling for employees he characterized as engaging in immoral behavior.


In order to require a medical examination or treatment, an employer must show more than aberrant behavior by the employee in question. The behavior must cast significant doubt on the ability of the employee to perform his or her job in a safe and effective manner. Isolated incidents of unprofessional behavior might form the basis for disciplinary action, but they are insufficient by themselves to conclude that the employee is suffering from a medical problem that mandates treatment.


In most situations, employers are better served by focusing on the employee’s behavior rather than the possible underlying psychological reasons for such behavior. If the employee discloses that he or she is suffering from a diagnosed condition, the employer may require counseling as part of the reasonable accommodation process. Otherwise, the employer should not speculate about the causes for the behavior, and treat it as they would any other performance or disciplinary matter.