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No evidence that employer who mandated employee participation in EAP regarded her as disabled; EAP counseling did not constitute a medical exam under the ADA

July 25th, 2012  |  Sheryl Allenson

An employer seeking to utilize an employee assistance program to resolve a workplace dispute escaped liability on one employee’s claim that referral violated the ADA. In this instance, EAP counseling did not constitute a medical examination under the ADA, ruled a federal district court in Iowa. (Jenkins v Medical Laboratories of Eastern Iowa, Inc, July 20, 2012, Reade, L). Also, the employee  failed to show that she was mandated to participate in the EAP due to any perceived disability and, thus, could not demonstrate that her employer regarded her as having an impairment. For this reason, as well as others, the court determined that the employer was entitled to summary judgment on her ADA and state law disability discrimination claims.

Coworker harassment. The employee injured her back during her tenure as a lab technician for the employer. She filed a workers’ comp claim and was restricted from bending. As a result, she was prohibited from drawing blood and doing other types of testing. There was no dispute that the employer helped the employee navigate the third-party administrator to acquire benefits and the employee admitted that the employer accommodated her back injury. She claimed, however, that when she was reassigned to other tasks, certain coworkers treated her in a hostile manner when she worked alongside them. For example, two of her coworkers would ignore her, snap at her, or otherwise be short with her. She claimed that at times she would go home and cry. One day, in response to an exchange with one of the coworkers, the employee left the facility and drove to the employer’s main office to report the harassment.

EAP mandated for all. At the main location, the employee asked her supervisor to meet with her next level supervisor. The next-level supervisor was unhappy that the employee had left her worksite without notice; notwithstanding her feelings, she allowed the employee to take the rest of the day off. The supervisor, along with the coworkers’ managers, decided that the employee and the coworkers should be required to participate in the EAP to resolve their disputes.

After the weekend, the employee returned to work and the next-level supervisor visited the facility and told each of the three employees that they needed to work together professionally. However, the employee claimed that, during a private conversation, the supervisor told her she was concerned about her and that she would need to meet with an EAP counselor to work on interpersonal skills. The employee refused and she was terminated. Although the employer offered to give her more time to think about it,  the employee still steadfastly refused to participate. On the other hand, the two coworkers agreed to participate in the counseling, and the employee reasoned the mandate that they participate in the EAP was not unreasonable. The employee filed suit under the post-amendment ADA and Iowa statute, alleging that the employer regarded her as disabled due to her back injury and her perceived psychological problems.

Not disabled. At the outset, the court disposed of the employee’s claims based on her back injury, noting that she did not focus on that claim in her response to summary judgment. Moreover, while the employee’s assertions could have arguably supported a HWE claim, she expressly stated that she was not bringing that cause of action. The employee could not establish that she was disabled, even under the broad coverage of the ADAAA. The employee admitted that the employer was not aware at the time of her termination that she had been diagnosed with psychiatric disorders. There was no evidence that the employer regarded the employee as disabled. Three workers were sent to the EAP, all for dispute resolution purposes. Thus, she could not establish that she was sent to the EAP on account of a perceived disability, the court ruled. Further, this type of counseling did not fall under the ADA’s prohibition on medical examinations. For similar reasons, the employee failed to establish proof supporting her contention that her termination was the result of a perceived disability. Instead, the evidence demonstrated that her continued employment was premised on her agreement to attend the EAP.

Additionally, even if the employee could show that she was disabled under the ADA, the court ruled that a requirement to attend an EAP program was not an adverse employment action. Thus, the only adverse employment action was her termination, and the court found there was no evidence that the reason given for that action was pretext for discrimination. Accordingly, the employer was entitled to summary judgment on the ADA and state law disability discrimination claims. Though different circumstances might lead to a different result, this court makes clear that at least in this scenario, an employer can take confort in knowing that EAP referral does not violate the ADA.