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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.
EMOTIONS AT WORK:
RESPONDING TO PSYCHIATRIC DISABILITY CLAIMS
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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:
TECHGAZETTE - November 1998, Vol. 1, No. 11
The Berger Law Firm, P.C. 1825 Eye St. 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.
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