Employer May Require Psychological Examination

An employer may require an employee to undergo a psychological examination if the employer has sufficient on-the-job evidence that the employee’s emotional state significantly impairs her ability to perform the essential functions of her job or poses a direct threat to the health and safety of others, according to the 6th U.S. Circuit Court of Appeals.

Emily Kroll worked as an emergency medical technician (EMT) for White Lake Ambulance Authority (WLAA) for five years. In 2007, Kroll began a tumultuous affair with her married co-worker Joshua Easton. Eventually, their relationship began affecting Kroll’s emotional state. Several of Kroll’s co-workers reported to her supervisor, Director of WLAA Brian Binns, that they witnessed her crying in a parking lot, arguing with Easton over the phone, and using her phone to call and text Easton while driving an ambulance. In April 2008, after questioning Jodi Osborne about her possible affair with Easton, Kroll refused to assist Osborne in administering oxygen to a patient.

Binns informed Kroll that she could continue her employment with WLAA only if she agreed to undergo psychological counseling. Binns admitted that he ordered counseling because of his concerns over Kroll’s sexual relationships and because he believed he could help her. Since WLAA refused to pay and Kroll could not afford it, she declined the counseling. She was thereafter removed from the schedule.

Kroll filed suit in 2009, alleging violations of the Americans with Disabilities Act. The district court granted summary judgment in favor of WLAA, finding ample evidence that Kroll’s emotional issues posed a direct threat to the safety of others and that a psychological examination was both job-related and a business necessity.

The 6th Circuit reversed the lower court’s judgment for WLAA and held that a reasonable jury could conclude that the limited information regarding Kroll’s emotional state and work behavior was insufficient to order the exam. Requiring an employee to undergo a psychological examination must be reasonably based on adequate objective evidence known to the employer ordering the examination.

While the court acknowledged Kroll’s aberrant emotional state, her behavior outside of work was only relevant in assessing whether it interfered with her behavior at work. The court elaborated that, at most, WLAA was aware of two incidents where Kroll’s emotional state impaired her ability to perform the essential functions of an EMT: 1) refusing to administer oxygen, and 2) texting while driving an ambulance. Those two instances did not provide WLAA with sufficient evidence to order a psychological examination. Had WLAA been aware of a “pattern of behavior” affecting Kroll’s work, Binns may have been justified in mandating the exam. In addition, even considering the lower standard for “public safety” workplaces, the court held that a reasonable jury could decide that Kroll’s two instances of misconduct did not pose a significant risk to the health and safety of others to justify a mandatory psychological examination.

Kroll v. White Lake Ambulance Authority, 6th Cir., No. 13-1774 (Aug. 19, 2014).

Professional Pointer: An employer should consider ordering a psychological examination only if there are numerous or significant instances of an employee’s emotional state interfering with his or her ability to perform the essential functions of the job.

Matthew Neff is an attorney with Allen, Norton & Blue, P.A., the Worklaw^® member firm in Winter Park, Fla.