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When last we visited the TECHWORKPLACE, our stressed-out employee Steve had filed a discrimination claim against his employer under the Americans with Disabilities Act (ADA) for failing to accommodate his depression. Over the next decade, it is likely that employers will see psychiatric-related disability discrimination as the claim du jour. Many employees, having experienced successful learning disability and counseling programs in school and through the media, will seek similar accommodation in the high-stress workplace. This trend will accelerate, as employers collapse product cycles and production deadlines. As litigation is often an inefficient resolution to such situations, we will explore what steps are recommended and required for employers to develop solutions to these legally and emotionally complex issues. When an employee requests an accommodation under the ADA, management is faced with a dilemma that can have long-range consequences for the employment relationship. If the company does not promptly address the request, its inaction can be used to support a discrimination claim. On the other hand, under the EEOC's "regarded as" doctrine, management action that connotes consideration of the employee as disabled brings the employee under the far-reaching protection of the ADA, even if it is ultimately determined that the individual is not disabled. Once ADA protection is established, the employee can use disability status as a shield against legitimate personnel actions, effectively undermining management control. Consequently, it is vital that a company establish procedures to fairly and efficiently determine whether a disability accommodation request meets the criteria for ADA protection, and instruct supervisors in identifying and assessing potential disability issues. The first step is to verify whether a disability indeed exists. This may be done through a "Dear Doctor" letter to the employee's psychiatrist or therapist requesting a diagnosis and supporting documentation. For an emotional or psychiatric health problem to rise to the level of an ADA "disability," it must be ongoing, chronic, and substantially limit the employee from performing a "major life activity," such as following instructions, organizing tasks, concentrating, or interacting with others. There is a fundamental distinction between short term anxiety and disorganization from a missed project deadline or a pending divorce, and persistent depression or attention deficit disorder. These types of distinctions are crucial in determining whether the situation falls under the ADA or under routine personnel practices. Consequently, it is important to obtain specific information on the nature of the condition, how it limits the any major life activities, its impact on the employee's ability to perform the essential job functions, and what job-related accommodations are recommended. If the company wants a second opinion from a specialist of its choosing, it may do so at its own expense. Employers and employees should approach any ADA request with an open mind and a willingness to work "interactively" to determine if a covered disability exists and what form of accommodation, if any, is necessary for the employee to perform the essential functions of the job. In the majority of cases, accommodation requests have inexpensive solutions that, along with effective planning and training, can reduce potential liability and foster a productive work environment for all employees. Copyright © 1998 Jeffrey Berger REPRINTED FROM: |
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