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3 Steps to Figuring Out ADA Reasonable Accommodations for Mental IllnessWhat do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.

We have talked before about your general obligations under the ADA. So, as a brief refresher, here are some steps to follow once your employee says he or she is suffering from a mental disability and needs a reasonable accommodation:

STEP ONE: Engage in the interactive process.

The ADA requires that you engage in an interactive process, so talk with the employee.

  • With which essential functions does the employee struggle?
  • What reasonable accommodations does the employee think would enable him or her to perform those functions?
  • What, if any, restrictions has the doctor provided?

Your first discussion is for you to collect information, so let the employee do the talking. Don’t assume that this employee’s depression/anxiety disorder/PTSD is the same as another employee’s or anyone else’s. You can and should get the employee’s doctor’s input on this. I have found that what employees want and what their doctors say they need are not always the same thing. Keep your questions about the disability job-related and consistent with business necessity. This is a process, so it could take several conversations. Be sure to document it thoroughly.

STEP TWO: Determine if the requested accommodation is reasonable.

A reasonable accommodation enables the employee to perform the essential functions of a job. A request is not reasonable if it eliminates an essential job function, poses a direct threat of imminent harm, or imposes an undue hardship.

Keep an eye on the essential functions of the job. You do not have to remove essential functions and create a new job for the employee. You may, however, have to reassign or eliminate non-essential functions. In assessing whether the employee’s performance of the job poses a direct threat, be objective. Get expert input on whether any proposed changes would work or if they would increase danger. Whether the proposed accommodation poses an undue hardship, such as by dramatically increasing costs or affecting productivity, is also a consideration, but in practice, that can be tough to prove.

Look carefully at the employee’s requested accommodation and if you don’t think it is reasonable, offer an alternative. Again, this is an interactive process. Feel free to get the doctor’s input.

STEP THREE: If you can’t accommodate, is transfer or leave an option?

If you cannot come up with a way for the employee to safely perform the current job, do you have a vacancy in which you can accommodate the disability? You do not have to displace someone or create a new position, but you should consider all vacant positions. If the employee is qualified for the vacant job, offer it as a reasonable accommodation. The employee does not have to compete for the position but does have to take the position as it is—even if it pays less, is on a different schedule, etc. Unlike an FMLA-related transfer, this is not a temporary move.

If you can’t accommodate and have no vacancies, your last resort is to determine if leave is a reasonable accommodation. Ask the employee if taking some leave would enable him or her to return to work and do the job’s essential functions. With mental disabilities, this could be a period of inpatient or outpatient treatment or medication adjustment. You should consider this option even if there is no FMLA available and you don’t have a company leave policy. It should be well-defined (i.e., one week, one month), and you do not have to grant open-ended leave.

If you can’t accommodate, and transfer or leave is not an option, you may have to terminate an employee. Before taking that final step, make sure you have properly documented your process and can prove how reasonable you have been. Of course, I think you should have your employment lawyer on speed dial but at the very least, talk to your lawyer before you terminate.

“I Got the Juice” – Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA DiscriminationEngaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to employees who request reasonable accommodations that may conflict with such policies.

Background

Linda Atkins was a lead sales associate at Dollar General who suffered from type II diabetes and occasionally experienced low blood sugar. If and when she had a diabetic episode, Atkins had to quickly consume glucose to avoid fainting or having a seizure. Because of her condition, Atkins asked her store manager if she could keep orange juice at her register in case of an emergency. The manager told Atkins that Dollar General’s policy prohibited having food at a register. In fact, the “Personal Appearance” policy stated that employees “should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).”

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes while she was working alone. Because there were multiple customers in the store both times, Atkins could not go to the break room where she kept orange juice in a cooler. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, Atkins paid for the orange juice and told the store manager what happened. Nevertheless, when Dollar General’s district manager and regional loss prevention manager conducted an audit and learned about what Atkins had done, they terminated her for violating the company’s grazing policy, which forbids employees from consuming merchandise in the store before paying for it.

Atkins filed a disability discrimination charge with the EEOC, and the EEOC filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA. After Atkins intervened in the lawsuit as a plaintiff, litigation proceeded to trial where a jury found in favor of Atkins on both claims, awarding her over $27,500 in back pay and $250,000 in compensatory damages. The district court awarded Atkins’ lawyers over $445,000 in attorney’s fees and almost $1,700 in expenses. Dollar General appealed.

Sixth Circuit Upholds Jury Verdict Regarding ADA Claims

On appeal, Dollar General first argued that it did not have a duty to accommodate Atkins because she could treat hypoglycemia in other ways, e.g., glucose tablets, honey, candy, or peanut butter crackers. Siding with the jury, the Sixth Circuit stated that the jury could have found that Dollar General’s “Personal Appearance” policy also prohibited employees from consuming Dollar General’s suggested treatment alternatives. More importantly, the Sixth Circuit highlighted that the policy included a disclaimer that permitted disability-related exceptions depending on the circumstances. Despite this disclaimer and Atkins’ request for an exception because of her diabetic condition, her store manager “categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.” Such a response was not consistent with Dollar General’s duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what type of accommodations could be made. Consequently, the jury had a legally sufficient basis to conclude that Dollar General failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding Atkins’ discriminatory discharge claim, Dollar General argued that it had a legitimate, non-discriminatory reason for firing Atkins, its anti-grazing policy. The Sixth Circuit swiftly discounted this argument, stating that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Furthermore, the Sixth Circuit emphasized that a neutral policy was irrelevant because Atkins had presented direct evidence of discrimination, i.e., failing to provide a reasonable accommodation.

The Sixth Circuit concluded its analysis by refuting Dollar General’s final argument that Atkins did not present evidence of animus toward the disabled. The Court held that proving animus was not necessary and an employer violated the ADA whenever it terminated an employee on the basis of disability. Ultimately, the Sixth Circuit upheld the jury verdict regarding both of the ADA claims, and Atkins prevailed.

Takeaways

This decision does not mean that you cannot apply neutral policies such as personal appearance or anti-grazing to disabled employees. However, employers who apply policies without regard to an employee’s disclosed disability do so at their own risk. Remember that you and your employee are a team that can only succeed when everyone can perform their jobs in a supportive and efficient environment. When faced with an employee who requests a reasonable accommodation, think about the following:

  • Would the requested accommodation violate a policy? Don’t ignore your policies that may prevent you from granting an employee’s request, but think about whether you need to make an exception to enable the employee to keep doing his or her job. If the employee’s request violates a policy, think about alternatives that would not violate the policy.
  • Solicit the employee’s doctor’s input when necessary. If you need a second opinion, get it.
  • Don’t forget that if you cannot provide a reasonable accommodation in an employee’s current position, you should determine if there are vacant positions for which the employee is qualified in which you could provide the accommodation.
  • If you simply cannot grant a requested accommodation, consult with senior management, human resources, and your attorney to assess whether not providing the accommodation would be an undue hardship or whether you can otherwise defend this decision.
  • Finally, document your discussion with the employee, and be sure it is clear that you did all you could to make it work.

Courts and juries like employers who try to figure out ways for disabled employees to keep working. Make sure you fit that mold before you end up in court.

Point for the (Work from) Home Team? Sixth Circuit Says Attendance at Work Not Automatically an Essential Work Function“You have to show up for work—it’s a part of your job.” Attendance at the workplace is an essential work function in an ADA case. But is it really anymore? With technology, some would argue that many jobs can be done from anywhere, and employees (particularly disabled employees) are more and more seeking to work from home. The Sixth Circuit addressed this issue recently in the decision of Hostettler v. College of Wooster.

Alternative Work Schedule

Heidi Hostettler worked in the HR department of the College of Wooster. She was four months pregnant when she took the job, and the told her that they would allow her 12 weeks of unpaid maternity leave, even though she didn’t qualify for it under the FMLA due to her short time of service. Her HR position was full-time, and Ms. Hostettler’s duties included performance-improvement plans, recruiting new hires, and designing training programs.

After the birth of her child and her 12 weeks of leave, Ms. Hostettler presented a note from her doctor stating that she had postpartum depression and one of the worst cases of separation anxiety her doctor had ever seen. The doctor suggested a return to work on a part-time basis for maybe a month or two. The college said okay, and Ms. Hostettler began working half days, but she had severe panic attacks if she had to work much later than noon. However, she returned emails from home and performed other work activities while away from the office.

There were disputes about whether the modified schedule was working. Several employees (through affidavits) said that there were no problems with Ms. Hostettler working part-time and from home. During this time, Ms. Hostettler got her first annual evaluation that indicated she was doing a good job and did not mention a problem with her reduced schedule. However, the college said the schedule was putting a strain on the rest of the HR Department. After several months, Ms. Hostettler submitted a new certification from her doctor that said she should continue to work part-time for at least several months.

After that latest certification, the college terminated Ms. Hostettler citing that she was unable to return to her assigned position of HR Generalist in a full-time capacity. A few months later, the college hired a male replacement. Ms. Hostettler sued for violations of the ADA and FMLA and for sex discrimination. The college moved for summary judgment stating that since the position considered full-time work as an essential function, and Ms. Hostettler couldn’t do that, that she was not a qualified individual under the ADA. The lack of being a qualified individual for the position also supported dismissal for the other claims. Ms. Hostettler appealed.

Sixth Circuit Analysis

The Sixth Circuit focused on the fact that the college admitted that the sole reason it fired Ms. Hostettler was because it could no longer accommodate her modified schedule. The court noted that the standard for her being qualified is that she can perform the essential functions of a job with or without an accommodation. The court pointed out that a job function is only essential if it is a core job duty—one that would fundamentally alter the position if it was removed. This analysis has to be done on a case-by-case basis.

In this case, Ms. Hostettler submitted evidence that she had satisfied all the core tasks of her position—even when she was only at her office for half days. She also submitted an affidavit from a co-worker who noted that there were no problems during Ms. Hostettler’s time in the position and that she completed all her work in a timely manner. Ms. Hostettler also showed that even her supervisor gave her a good review while she was working the part-time schedule. The court did note that there was evidence presented to the contrary —some projects had “dropped through the cracks” while Ms. Hostettler was working part-time. Another apparent dispute of fact was that while the college said it talked to Ms. Hostettler about the need for her to be at work full-time, she denied that series of discussions had taken place.

The Sixth Circuit held that full-time presence at work is not, on its own, an essential function. Time and presence requirements must be tied to some other job requirement. The court distinguished cases where presence at the workplace was considered an essential function by showing that in those cases, the person had to physically be at the worksite to complete the job. Instead, the court felt that this case was more like other instances where an employee could complete the essential functions while working remotely. According to the court, “full-time presence at work is not an essential function of a job simply because an employer says it is.” In the end, the court reversed the summary judgment, finding that

“an employer cannot deny a modified work schedule as unreasonable unless the employer can show why the employee is needed on a full-time schedule; merely stating that anything less than full-time employment is per se unreasonable will not relieve an employer of its ADA responsibilities.”

Is Attendance an Essential Function?

While this case probably will soften the edges around some accommodation requests to work from home, it doesn’t automatically preclude an employer from claiming that full-time presence at the workplace is an essential job function.

  • Jobs where the work can only be performed at the job site—such as construction, manufacturing, call centers, etc.—-will not likely be affected.
  • Office work and sales jobs where technology may allow an employee to conduct work from other locations, or on other schedules, may be affected.

This decision should inspire employers to re-examine job descriptions and determine what sort of functions they believe can only be done at the job site. Those descriptions need to be detailed and supportable. Finally, remember that one size does not fit all, and every request has to be assessed on its own. You cannot deny an employee’s modified or work-from-home schedule because no one else has such a schedule. Each request must have a separate, well-documented interactive process.