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Employee behaving strangely? Think twice before urging her to seek counseling

by on
in Employment Law,Human Resources

Do you have an employee you think is acting strangely? Has she had trouble getting along with co-workers? Do you think she might benefit from counseling?

Before you tell her she needs to get help, consider that she just might try to sue you instead. That’s especially true if she refuses counseling and then loses her job.

She may allege you told her she had to get help—essentially trying to find out whether she has a mental disability—and that when she refused, you punished her by terminating her.

The better approach is to simply discipline her under your existing rules for any disruptive behavior. As long as you can show that everyone who similarly misbehaves is punished, your actions aren’t discriminatory.

Recent case: Emily worked as an emergency medical technician (EMT) for an ambulance service. When she became romantically involved with a co-worker, her behavior apparently changed, so much so that other co-workers reported they were worried about her mental stability.

That’s when the office manager intervened. Emily was informed that she should seek psychological counseling. The office manager even spoke with the ambulance service’s workers’ compensation medical provider and got a referral for Emily.

Emily said she didn’t want counseling. Then she got into an argument at work. That’s when the office manager apparently told Emily and her father that she had to seek help; otherwise, she could no longer work as an EMT.

Emily, who claimed she couldn’t afford counseling, said she wouldn’t go and left work, never to return.

Then she filed a lawsuit, alleging that ordering her to attend counseling violated the ADA. She argued that psychological counseling is a prohibited medical test because it’s designed to elicit whether the employee has a mental disorder or some other disability. A trial court dismissed her lawsuit.

However, the 6th Circuit Court of Appeals has now reinstated it. The appeals court reasoned that if a psychologist examines an employee in order to determine whether she needs counseling, that amounts to looking for signs of a mental disorder. It reasoned that in this case, submitting to counseling was a job requirement.

That was enough to send the case to a lower court, where the ambulance service will have to show that the counseling order was job-related and consistent with business necessity. (Kroll v. White Lake Ambulance Authority, No. 10-2348, 6th Cir., 2012)

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