How do you deal with an employee who’s disruptive and can’t get along with co-workers? The obvious answer may be a warning or other discipline. But the federal Ninth Circuit Court of Appeal says employees like these may have a mental disability protected by the Americans with Disabilities Act (ADA), and that instead of disciplining them, you may have to accommodate them.
The court¹s ruling creates new headaches for employers because it expands the types of mental conditions that qualify as disabilities under the ADA. And this comes at a time when employers are contending with an ever-increasing number of accommodation requests from employees with emotional conditions ranging from attention deficit disorder to depression. We’ll look at the new decision and another case that also expands California’s mental disability law. And we’ll outline how you can strengthen your current accommodation procedures.
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Stressed-Out Employee Sues
Richard McAlindin, a systems analyst for the San Diego County Housing and Community Development Department, suffered from severe anxiety and panic disorders that may have been exacerbated by a promotion to a more stressful position. His condition allegedly caused him to become increasingly withdrawn and unable to deal with others or to sleep at night. Medication to control the problem left him drowsy and impotent.
McAlindin sued the county under the ADA, alleging it had discriminated against him by failing to provide a reasonable accommodation, including refusing to transfer him to a less stressful job.
Who Qualifies As Mentally Disabled?
The county tried to get the case dismissed before trial, arguing that McAlindin wasn’t disabled under the ADA because his mental impairment didn’t substantially limit the major life activity of working. But the Court of Appeal ruled that McAlindin’s mental condition didn’t have to limit his ability to work if he could prove it substantially limited another major life activity. This could include interacting with others, being able to sleep or even engaging in sex.The court made clear, however, that simply not getting along with co-workers isn’t enough to qualify for ADA protection. Instead, McAlindin will have to show that his ability to interact with others was limited on a regular basis by severe problems that couldn’t be alleviated with medication.
California Law May Be Broader
When it comes to emotional disorders, it may be even easier for a worker to prove a mental disability under state law than under federal law. This is because in another recent case, a state Court of Appeal said that California law doesn’t require workers to meet the ADA test of showing that their mental disability is so severe that it substantially limits a major life activity.Instead, to be protected from discrimination and entitled to a reasonable accommodation, employees must prove only that they have a mental or psychological disorder, such as emotional or mental illness, retardation, organic brain syndrome or specific learning disabilities. However, other California courts have applied the stricter ADA “must limit a major life activity” standard to cases brought under the state’s disability discrimination law.
5 Practical Approaches To Take
The rules for determining who is protected under federal and state mental disability laws aren’ clear cut. So knowing where to draw the line between what’s simply an objectionable personality trait and what’s a covered disability that may require an accommodation can be difficult. And beginning in January, even more employers will face these dilemmas as the threshold for coverage under California’s mental disability discrimination law expands to employers with as few as five workers. Here are some suggestions for dealing with these troublesome issues:
- Create thorough disability policies. Mary Maloney Roberts, a partner with the Oakland office of Crosby, Heafey, Roach & May, suggests creating a written policy stating that it’s an employee’s responsibility to inform you if a disability interferes with their ability to perform their job. This will help you from being blindsided by a claim that you failed to reasonably accommodate a disability you didn’t even know existed.
- Draft detailed job descriptions. Disabled workers must still be able to perform the job’s essential functions with or without a reasonable accommodation. Therefore, be sure to include the emotional or psychological requirements of the position in job descriptions. For example, state that the job requires employees to maintain cooperative, diplomatic working relationships with co-workers, supervisors and the public; work as part of a team and collaborate with colleagues; and complete projects under tight deadlines even when there are competing requirements and changes in assignments.
- Require a fitness-for-duty exam. If you believe someone can’t perform the essential job functions due to a mental impairment or that they pose a threat of harm to themselves or others, you can remove the employee from the job until they pass a fitness-for-duty exam.
- Notify employees of available resources. If you notice a problem that an employee hasn’t brought up, Roberts recommends referring the person to an employee assistance program, if available. Also, give the employee a copy of your policies on disability, accommodation, and medical and family leave – but don’t ask whether they have any psychological problems.
- Evaluate possible accommodations. The Equal Employment Opportunity Commission’s (EEOC) guidance on accommodating mental disabilities suggests allowing employees to work modified schedules to receive treatment; moving the person’s desk to a quiet area to limit distractions; or transferring the worker to a new position to reduce stressful interactions with co-workers. However, you’re usually not required to assign a new supervisor as a stress-reducing accommodation.