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What to do with the emotionally unstable employee? What to do with the emotionally unstable employee?

What to do with the emotionally unstable employee?

Imagine you are the owner of a small business where employees are treated like family.  Unfortunately, two of your employees have a tumultuous affair plagued with jealousy, tears, and arguments.  After the affair ends, you become concerned about one of the heartbroken employee’s emotional and mental health and suspect that she may be suicidal.  This employee is an EMT and it is reported to you that she has refused to assist in providing patient care and has yelled at people on her cell phone while operating an ambulance in emergency status.  You feel her “life was a mess” and want to help.  What can you do? Can you require counseling or must you wait until the situation implodes?
Faced with facts similar to those stated above, the Sixth Circuit Court of Appeals (controlling over Kentucky, Michigan, Ohio and Tennessee) found that you cannot require an employee to undergo counseling unless the counseling is job-related and consistent with business necessity. Kroll v. White Lake Ambulance Authority, No. 13-1774, --- F.3d --- (6th Cir. 2014).  This decision follows a 2012 opinion in the same case wherein the Court found that psychological counseling may constitute a medical examination under the Americans with Disabilities Act (“ADA”). Kroll v. White Lake Ambulance Authority, 691 F.3d 809 (6th Cir. 2012).  Note that this provision of the ADA applies to all employees, not just employees who are disabled or perceived as disabled. 
The Sixth Circuit’s decision was not an easy one to make.  There was very little law to assist the Court in determining whether counseling is considered a medical examination under the ADA, forcing the Court to turn to the Equal Employment Opportunity Commission’s (“EEOC”) enforcement guidance.  The EEOC’s guidance isn’t required to be followed but is persuasive in interpreting the ADA.  A copy of this guidance can be found at  The guidance defines a medical examination as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.”  Psychological tests that are designed to identity a mental disorder or impairment are given as one example of a medical examination.  Since counseling may be designed to reveal a mental health impairment, it could be considered a medical examination under the ADA. 
A medical examination is job-related and consistent with business necessity if (1) the employee requests that the employer accommodate a disability; (2) the employee’s ability to perform the essential functions of his/her job is impaired; or (3) the employee poses a direct threat to himself/herself or others.  Annoying or inefficient behavior is not enough to justify an examination.  It is only when an employee’s “aberrant behavior” rises to a level that his/her mental or emotional instability could undermine his/her ability to complete job functions that an examination may be warranted. 
In the case above, the Sixth Circuit ultimately stated that it was up to a jury to determine whether the desolate employee was able to adequately perform her job and/or posed a threat to herself or others.  The Court was also very critical of the fact that the employer did not consult with a medical professional before ordering counseling or have sufficient evidence to support its position that the counseling was job related.    
Back to the initial question - what can you do to assist an emotionally unstable employee?  You can require an employee to undergo a psychological test, including counseling, as long as you have a reasonable belief that the employee cannot perform the essential functions of his/her job or poses a direct threat.  Keep in mind that these cases are extremely fact-specific and that you must have adequate, documented support for your belief.  It may be necessary in some cases to first consult independently with a medical specialist or attorney for guidance as to whether the particular facts are extreme enough to warrant medical intervention. 
If you have concerns about an employee’s ability to safely perform job duties or would like to speak more generally about other employment law issues, please contact Angela Courtwright or any other member of Ice Miller’s Labor and Employment Group.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.
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