| Home Back
to:
Articles |
TECHWORKPLACE
by Jeffrey L. Berger, Esq.
Jeffrey L. Berger
specializes in management-side employment and business law, and related litigation in
Washington, D.C., and nationally. Questions and comments on the TECHWORKPLACE are
encouraged. Other articles are available at www.bergerlaborlaw.com.
LAW ON PSYCHIATRIC DISABILITIES CREATES STRESS
FOR EMPLOYERS
|
 |
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:
TECHGAZETTE - October 1998, Vol. 1, No. 10
The Berger Law Firm, P.C. 1825 Eye St. N.W., Suite 400, Washington, D.C. 20006.
Phone: (202) 861-1361 Fax: (202) 861-1362
Legal advice is case specific and is not intended to be provided by this article.
The Berger Law Firm, P.C. may not be held responsible for any consequences
that may arise in connection with the use of or reliance on the information provided.
|