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I live in IA and work for a large hospital. My employer is

requiring myself and another co-worker...
I live in IA and work for a large hospital. My employer is requiring myself and another co-worker to go to a licensed therapist for both individual and group counseling. I have not had any problems with this individual but she had problems with the person I shared an office with and they "perceive" we could have issues. I have never been unprofessional and am told by my boss that I have not been. Prior to their issues developing I was not scheduled to go to counseling with her. This has just developed since then. I suggested if there were concerns then we could talk or even talk with management present but this is what they feel. It was my understanding that due to a recent case (Kroll v White Lake Ambulance Authority) that any type of counseling, whether it is to diagnose a condition or not, may be considered a "medical exam" under the ADA. This counselor is a licensed therapist and able to make a diagnosis of mental illness, which I have not have. This counselor is also not neutral but rather chosen by my boss and this person reports directly to my boss in her job, as well, which I feel could be a conflict of interest. He also interacts with her on a personal level outside of work. She is also the head manager of our EAP program so going there is not an option. I have several times expressed my concerns about going. She will report back to him regarding us. Is this a violation of the ADA? Am I required to go? Also, of note in this lawsuit, that individual was threatening suicide, driving an ambulance and yelling, etc. I have never made any threats to her or anyone else. Thank you.
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Answered in 7 minutes by:
3/11/2013
Tina
Tina, Lawyer
Category: Employment Law
Satisfied Customers: 33,167
Experience: JD, BBA, recognized by ABA for excellence.
Verified

Hello and welcome.

I am sorry to hear of your difficult situation. My goal is to provide you with excellent service. First, I have some questions for you so I can determine what information to provide you.


I would be happy to address your concerns with regard to the ADA, but would like to address the possibility of gender or other forms of discrimination that may be involved here as well. On what basis does the employer perceive that there may be issues with you and your co-worker? You are female, correct? Does the employer require any male employees to attend counseling like they are directing for you? Do you have any reason to believe you might be singled out based on your age (40 or older) or other protected status?

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Customer reply replied 4 years ago
She made a remark to me in a meeting that I wasn't doing my job and I told her that I wouldn't play into her drama and that I had work to do and I walked out. (This was after the meeting was over). Two days later I spoke with my boss about concerns that I had about her and her job performance, such as she was possibly committing insurance fraud and causing potential EMTALA violations. I do insurance reviews and bed placement/access for the largest psych hospital in the state. A few weeks later, the person that I shared an office with at the time, was retiring and left this individual a voicemail stating the he hoped she would take his retirement opportunity as a way to step up and help the other units in the hospital or consider quitting. They have had past problems several years ago. She has had problems with multiple co-workers. Well, I was in the office at the time but had no participation in what he did. Since I was in the office at the time, I was called in but I clearly explained that I will not be held accountable for someone else's actions. They stated I am not being, however, I was told I had to call this co-worker and apologize to her. I said I was not comfortable with that but had to anyways. I left her a voicemail to call me so we could talk. I then received a call from my boss stating she does not want to talk, even with management present, and would not have to work on our unit, even though with our computer system she does not have to ever be on the unit. I was then told that she felt most comfortable with counseling so that would be required. Prior to my office worker leaving a voicemail I was not having to go to counseling, individually and/or with her. I stated multiple times that I was not comfortable with this and was basically told, "too bad, it's what she wants." I said I felt this was extreme since we had never just talked or talked with management present. After all, I was told to call her and apologize for something I did not do then she is allowed to refuse to talk. Also, I have continued to work with this individual on nearly a daily basis without incident. My boss has even said that he has never seen me be unprofessional. I do have concerns that he shared with her my concerns about her that was said in confidence in his office that day.
No males, as far as I know, have ever had to do this. I only know of a group of nurses having to get together and meet with this counselor as a group, but never on an individual basis.
Yes, I am a female, over 40, but don't feel that is much of an issue, although others have often said my boss hires based on looks and not qualifications. He does like young blondes.
Thank you for the additional information, Amy. Unfortunately, I am being called away from the office right now so rather than keep you waiting for an answer, I will opt out and another attorney can assist you.

I wish you all the best and thank you for your understanding.
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LawHelpNow
LawHelpNow, Attorney/Lawyer
Category: Employment Law
Satisfied Customers: 7,639
Experience: Relax. Let's work together. Practical solutions.
Verified

Hello,


My name is Ben. I'm a licensed attorney and registered nurse. Glad to try and help out.


Sure sorry for the circumstances, truly. My heart goes out to you.


Here's how this works

First of all, I'm concerned about the treble factors of your age, gender, and yes (as you astutely raised) disability. I say that here, especially given your comments about "young blondes" and so forth. It's entirely up to you, but I would encourage you to consider taking a proactive stance. That means you can report your concerns, free of charge, to the U.S. Equal Employment Opportunity Commission. Everything you need is provided here (please just click the following link):

Filing A Charge

You deserve to be treated properly, and if you want to pursue the matter your next step is to file your complaint. This is an exclusive remedy, meaning you must follow this process first, rather than going directly to a lawsuit.

Now, more specifically, you're quite right about the way you described the holding. To read the entire opinion, please just click here:

Kroll v. White Lake Ambulance Authority, U.S. Court of Appeals for the Sixth Circuit, 2012 U.S. Lexis 17727 (Aug. 22, 2012)

The botXXXXX XXXXXne is that whether it's based on age, gender, disability (counseling) -- one or a combination of factors -- such discrimination is plain unlawful. The remedy lies is filing your charge (as outlined above), and frankly you have solid reason to proceed.


If you have a follow-up question or need clarification, please just say the word by using "reply" to reach me.


I truly hope all works out for you.


Take care,


Ben, J.D., R.N.

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Customer reply replied 4 years ago
Thank you so much for your response. This has been helpful. I am wondering since Iowa is a "right to work" state (I think that it what it is called), can I be automatically fired for refusing to attend this counseling session? They are looking at scheduling it this week, and possibly as early as tomorrow. My boss has spoken personally to the counselor today and informed her that we needed individual and group sessions. I have no idea what information he provided her and remember he is also her direct boss. She has emailed me today to set up the individual session with her. Do I have to go or be fired for refusing? What is the best response to give?
Also, am I understanding your above response correctly that by forcing counseling in this matter, it would apply as a "medical exam" and be a violation of the ADA?
Thank you.
Hi there,

Thanks for writing back...great to hear from you!

You're quite welcome...my pleasure entirely.

Thank you for taking the time to write back and let me know my answer was helpful, which means more to me than I can say.
Yes, yours is indeed a "right to work" jurisdiction, as codified here:
Iowa Code Ann. §§ 20.8, 20.10 and 731.1 through 731.8
However, that does not by any means provide an automatic "out" or excuse to your employer. In other words, it works like this, briefly. Without benefit of a written employment contract or a collective bargaining agreement (union), we have the application of the harsh legal doctrine called "employment-at-will". This means an employer is free to terminate an employee at any time, for any lawful reason, without advanced notice. At first blush, that sounds horrible, and it often is, but it all hinges on that one power word -- "lawful". Firing you on account of an Americans with Disabilities Act (ADA) violation, based on age above 40, or gender, all constitute unlawful reasons.
Having said all of that, yes you could be fired. There is nothing in the law to prevent it, but there certainly are means of seeking redress thereafter (as outlined above). And yes, it's very clear from the case law that such an appointment absolutely does fall within ADA protection. As to your approach, I would mention you looked into the law on the matter, are exploring your legal options, and personally don't think that it's lawful for you to be compelled to attend as demanded. If you are fired (which of course I hope doesn't happen) or not, in my estimation you still have more than enough good reason to proceed with pursuing your case.

Hang in there and know I'm holding a good thought for you!

Kind regards,

Ben, J.D.
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Customer reply replied 4 years ago
Thank you so much for all your expertise in this matter. I am very impressed with the service and information you have provided. Just wanted to update you. Today, I discovered in our Associate Handbook that it states an employee is required to report to their supervisor any concerns of possible insurance or government related violations. It states "it is unlawful" for that employee to be retaliated against for doing so. I reported my concerns on 2/8/13 and he has continued to bring this up and is requiring this counseling/coaching due to what I said in regards XXXXX XXXXX concerns about this other employee. I sent an email to the Vice President as the manual instructed, stating my grievance. I also went to HR with the same info. I was told by them that they could enforce this and not only that but that they could "mandate" me to go to the therapist of their choice for a complete mental health evaluation and diagnosis if they so wanted and that I would have to comply. They said they can require this or fire you. I know this is true for substance abuse but this is not the case here. I was shocked since I had even taken the entire ADA guidelines with me.
I just wanted to let you know that after that I have decided to try and find another job ASAP and then proceed with your recommendations. I never would have done this without your professional advise. I don't want to leave my job since I do love what I do but figure it is the best option. I am worried what would happen if I stay and persue this. I would think according to their own handbook, I could consider his constant retaliation as harassment, too.
I enjoy studying law and after this experience I am considering getting my Legal Nurse Consultant Certification. I had been thinking about it for awhile. Thank you so much for all that you have done. You were the only one to confirm what I understood to be true. Thank you again.
Hi again,
Great to hear from you and thanks for writing back!

You are quite welcome. My pleasure entirely!

It makes my day to hear that you're pleased with our service and that my answers have been helpful to you. Thank you for taking the time to write back and let me know that, for which I am quite grateful!
I'm holding a good thought for you, not only for a successful resolution of this matter but in terms of your future career as well.

Best regards,

Ben, J.D.
LawHelpNow
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