Employee Assistance Programs

1. Employee Assistance Programs ADA Medical Tests

2. Kroll v. White Lake Ambulance Auth • Ambulance driver shouted at another employee while driving with a patient in emergency status • Appeared to be depressed about love relationship with married co-employee • Concern about safety of patients

3. WWLA “Required” counseling • Kroll did not object to “counseling” but said could not pay for it • Terminated when she failed to do get counseling • Initially filed Title VII gender discrimination • District Court granted SJ to employer

4. Kroll – what went wrong?Litigation Problems • Disputed facts resolved for employee: • Was she told “psychological counseling” or just “counseling” • Did employer direct Kroll to a psychologist? If so, was it knowing? • Would WLA get any information back - attendance?

5. Kroll – What went wrong?SJ never reached key issues • Assumed employee fired for refusing counseling and not fired for poor performance –causation issue not before 6th Cir • Kroll never went for “counseling” so many issues relating to nature of counseling were not before the 6th Cir • 6th Cir never reached “job relatedness” or “business necessity”

6. Kroll – What went wrong?Substantive Problems • What reasons? • Court appeared to be concerned that any counseling would require underlying analysis which would come under the EEOC guidelines on ADA. • May have no effect on Employment – Employer may not know anything?

7. Kroll – what went wrong?Terrible Holding • Reasonable jury Could conclude: • WLAA intended for Kroll to attend counseling to explore her possible affliction with depression, or a similar mental-health impairment, so that she could receive the appropriate corresponding treatment. • This uncovering of mental-health defects at an employer's direction is the precise harm that [the ADA] is designed to prevent absent a demonstrated job-related business necessity.

8. EEOC ADA enforcement rule define “medical examination” as "a procedure or test that seeks information about an individual's physical or mental impairments or health." • Factors include: “(5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task”

9. Kroll v. White Lake Ambulance • For a "medical examination" one must consider whether it is likely to elicit information about a disability, providing a basis for discriminatory treatment. The EEOC explains that prohibiting such inquiries prevents discrimination by precluding employers from obtaining information about "nonvisible disabilities, such as . . . mental illness," and then taking adverse employment actions "despite [an individual's] ability to perform the job.“ (Italics Added)

10. Kroll – what impact on Employee Assistance Programs? • Normal Process - employer refers employee to EAP based only on unexplained and documented poor work performance • (Or employee self referal) • Need clear written policy: • Termination decisions based on work only • EAP referral is completely voluntary but participation may defer termination for poor performance

11. EAPs • EAP evaluation is completely confidential to extent permitted by law – (but EAP will advise employer of ongoing cooperation with the program) • Treatment is voluntary • Illegal drug users not protected but current alcohol users may be.

12. Fitness for Duty • mental and physical fitness-for-duty examination fell within the ADA's protections

13. Peronality Tests • WSJ Sept 20, 2012, p B1 • Algoithyms Run the Workplace • “Companies Trade In Hunch Based Hiring for Computer Modeling

14. “Personality” Tests For workers at call centers, Xerox looked for experience but found personality correlated more with lack of turnover Applicants may choose between “I ask more questions than most people do.” or “People tend to trust what I saw. Lives near job, reliable transportation, social networks – but watch disparate impact

15. Personality and Honesty Tests • The guidance further explains • "psychological tests that are designed to identify a mental disorder or impairment" are "medical examinations," • while "psychological tests that measure personality traits such as honesty, preferences, and habits“ are not.

16. What about other testsPersonality Tests – Karraker (1) • 7th Cir rejected evaluation process for employees for promotion that included the Minnesota Multiphasic Personality Inventory (MMPI): • (1) purpose was measuring personality traits, (2) the test was not being scored by a psychologist, and (3) the employer was only using "a vocational scoring protocol" as opposed to "a clinical protocol • (Karraker v. Rent-A-Center, Inc., 411 F.3d 831 (7th Cir. 2005),

17. What went wrongPersonality tests- Karraker (2) • 7th Circuit reasoned: • a high score on the test could be "one of several symptoms which may contribute to a diagnosis of paranoid personality disorder“ • Concluded test was "best categorized as a medical examination

18. What went wrongPersonality/Honesty Tests • Violations of Privacy in California – for security guards, employer looked for “stability” but questions about religion violated personal privacy (Soroka v. Dayton-Hudson) • Disparate Impact? mental and physical fitness-for-duty examination fell within the ADA's protections