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Imagine this scenario: In casual workplace conversation, Steve mentions to his supervisor Susan that he is "stressed-out and depressed" and could use some time off. She replies that everyone is working overtime and she is looking for additional staff. Sympathetically, Susan tells Steve to keep working to meet project goals. A few days later, Steve quits and files a discrimination complaint with the EEOC under the Americans with Disabilities Act (ADA). He alleges that his employer failed to provide reasonable accommodation for his psychiatric disability. Is the company liable, and how much time and expense will it take to find out? There is no easy answer to this question. Companies increasingly find themselves in litigation over charges of psychiatric disability discrimination. High tech employers, with sophisticated employees working long hours, are particularly vulnerable to claims involving depression, anxiety, and stress reactions. On the positive side, there are many steps employers can take to limit ADA claims by adopting an interactive and systematic approach which, in turn, creates a more comfortable and structured environment for resolving these issues. Under its ADA psychiatric disability guidelines, the EEOC would view our scenario above as notification to the employer that the employee may have a psychiatric disability ("stressed-out and depressed"), a request for reasonable accommodation ("time off"), a rejection of the request ("continue working"), and a possible constructive discharge. Thus the first, and most crucial, step for employers in working through ADA issues is recognizing when a potential claim exists. An employee needs only state "in plain English" that he needs an adjustment or change at work related to a medical condition to put an employer on notice. Supervisors should be sensitized to ADA issues and trained in how to respond, since psychiatric limitations are often regarded as signs of poor performance, rather than symptoms of disability. Employers must adopt an interactive process to determine whether the employee actually has an ADA protected disability, i.e., one that "substantially limits a major life activity" such as learning, concentrating, and interacting with others, and whether the disability impacts performance of essential job duties. Once a psychiatric disability is established, the ADA requires an employer to provide a reasonable accommodation. If the employee cannot perform his or her job, or if accommodating the individual creates an "undue hardship" for the company, the employer is under no obligation to retain the employee. If, however, the employee is qualified for the position, the company must explore possible accommodation strategies, which can be as disparate as the various disabilities. For example, a person with attention deficit disorder may require written instructions, while a learning disabled individual may need a job coach. Generally, the employee should suggest accommodations, however, the company is not necessarily required to adopt them. Obviously, psychiatric disability issues are too complicated to cover in one article. Indeed, these claims and their complexity have risen sharply over recent years, along with potential liability for the unwary employer. A proactive approach to ADA policies and procedures, along with appropriate training for managers, can often reduce stress, and perhaps depression, for employers in the long run. We will expand on the reasonable accommodation process in a future article. Copyright © 1998 Jeffrey Berger REPRINTED FROM: |
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