Let’s say that you have an employee who is claiming that he is having a stress related disorder. He says that his supervisor is making matters worse and that his condition is making it difficult for him to come to work. His absences have increased lately and, suspiciously, they most often occur on Fridays. What should an employer do?
The employer has to analyze its possible obligations to the employee on a few levels. Is he entitled to coverage under the ADA? Are his absences eligible for FMLA protection? Maybe both? Where do you start?
Firstly, the employer needs to get rid of any preconceived notions about the employee and the situation. It is often only after performance or attendance changes occur that employees reveal their issues, which means that often the employer is already irritated and sees the medical condition as a made up or exaggerated excuse for poor performance. It’s important for the employer to analyze the issues as objectively as possible, keeping in mind that regardless of how it looks, the employee may be telling the truth.
Next it is important to obtain medical documentation of the employee’s condition. This is important for two reasons. It is the employer’s right to have an understanding from a treatment provider or professional which describes the condition and the restrictions. This also assists the employer to determine whether the employee is entitled to ADA protection.
In our example, the employee described a stress disorder, a difficult one to deal with for a couple of reasons. First of all, many supervisors respond to hearing that an employee has a stress disorder with a statement that often times starts with “If he thinks he has stress now…” To make matters worse in our example, the employee is attributing some of the stress source to his supervisor. That rarely engenders sympathy from employers, reinforcing the need for medical documentation.
After receipt of the medical documentation, the employer needs to determine whether the condition is protected by the ADA and/or the FMLA, keeping in mind that the law provides for broad application and protection. In our example, stress disorders are generally covered by the ADA, but medical documentation would be necessary to determine whether the stress disorder was temporary or situational rather than chronic. A situational stress disorder, maybe as the result of recent life events for the employee, might not amount to a disability under the ADA, but his absences could still be covered by the FMLA, and FMLA leave is appropriate.
Assuming the employee in the example is covered by the ADA, the next step is to engage in the interactive process to determine whether a reasonable accommodation exists. What this amounts to is an open conversation between the employer’s representative and the employee where they talk about different options to accommodate the employee’s disability.
In our example, the employee has only hinted at what he might ask by saying that his supervisor exacerbates his stress. Generally, a transfer away from a particular supervisor is not a reasonable accommodation, but the employer could suggest that the employee could apply for other vacancies within the organization. Moreover, it might be wise to determine what the supervisor is doing to create the stress to ensure that there is no wrongdoing by the supervisor.
During the interactive process, three things are important. One, as we mentioned, is to listen to and evaluate all possible options presented by both sides. The second important reminder is that an employer does not have to grant the accommodation requested by the employee, or any accommodation if the only options create an unreasonable hardship for the employer. The third and equally important reminder for employers is the need to document the interactive process. This should be a memo to both the employee and the file which reiterates the accommodation options discussed and any conclusions reached. Additionally, if the employer concludes that no reasonable accommodation exists, it should document with as much specificity as possible why it was unable to identify a solution. This will be invaluable evidence should a claim later arise because in order for an employer to defend its conclusion on a reasonable accommodation, it must first show it engaged in a proper interactive process.
In our example, for instance, the employer might suggest that the employee can apply for other vacancies or take a leave of absence to address his condition. The employee might suggest that he be allowed to switch jobs with another employee in order to work with a different supervisor or to work at home. At least one court has held recently that working from home is often not a reasonable accommodation, but we always caution that reasonable accommodations must be analyzed on a case by case basis. It is important in the process to discuss all of the options, including explanation of why or why not the options works, followed by documentation of the discussions.
What was probably envisioned as a simple process in addressing disability accommodations in the workplace by the writers of the ADA, has remarkably become fraught with emotion and difficulty. Often it is valuable to consult with an experienced labor and employment attorney to evaluate the circumstances and guide the process to a defensible conclusion.