Today’s employers are usually well aware of their responsibility to protect employees from unlawful discrimination based on disability. But what about the disabilities that are unseen and often misunderstood? How can the employer do right by the employee and still keep the work on track? Those questions don’t have easy answers, but focusing on time-honored human resources practices—such as carefully drafted job descriptions—put employers on solid legal ground.
Conditions such as post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), and even less defined conditions related to stress and anxiety can be complicated for employers since such conditions may or may not be severe enough to be classified disabilities under the law.
The starting point for employers is an understanding of what’s at stake, according to Susan G. Fentin, an attorney with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. And those stakes are high as misjudging how to handle an employee with a stress-related disability can be a multimillion-dollar mistake.
Fentin reminds employers that several laws affect how employers treat employees with disabilities. For example, on the federal level the Americans with Disabilities Act (ADA) and the ADA Amendments Act of 2008 (ADAAA) come into play, as well as the Family and Medical Leave Act (FMLA) and regulations from the Equal Employment Opportunity Commission (EEOC). In addition, state and local laws often provide protections against disability discrimination.
The ADA defines disability as a mental or physical impairment that substantially interferes with a major life activity. The law requires employers to provide reasonable accommodations to employees with disabilities if such changes are necessary for the employee with a disability to perform the job.
In addition to understanding their obligations under the ADA and ADAAA, employers covered by the FMLA (generally those with at least 50 employees within a 75-mile radius) also have to understand their obligations to provide unpaid leave for people dealing with disabling conditions. The EEOC also has guidance for employers dealing with psychiatric disabilities including anxiety and panic disorders, PTSD, and OCD.
Job descriptions key
The ADA protects “qualified individuals with a disability,” so it’s important to outline just what qualifies someone for a job. The law requires employers to sit down and talk with an employee about what changes he or she might need in order to perform the essential functions of a job, what the law refers to as engaging in the interactive process. But Fentin points out that the law only requires an accommodation that works, not necessarily an employee’s preferred accommodation. Also, the employer is not required to eliminate any of a position’s essential functions.
That’s why it’s so important to include all essential functions, including the ability to interact with others and the ability to promptly respond to requests if those things are truly necessary to do the job, Fentin says.
“You just need to make sure that there’s enough language in those essential functions sections of your job descriptions that allow you to point to the individual and say, ‘Gee, you have to be able to do this. If you can’t do this, then you might not be qualified to do the job,’” Fentin says. She also urges employers to regularly review job descriptions. “There is nothing that will help you more in defending a charge of discrimination based on disability than an accurate job description that specifically lists the essential functions and the specific physical and emotional skills that are required to be successful in that position.”
Reasonable accommodation ideas
When working with an employee the law deems to have a disability, employers need an idea of what accommodations can work for both the employee and employer. Fentin says helpful accommodations for someone with an anxiety disorder or other emotional disability such as PTSD or OCD include:
- A reduced work schedule, flex time, or regular time off if necessary for treatment.
- A change in work location or transfer to another vacant position for which the employee is qualified and which would more easily accommodate the disabling condition.
- Working from home.
- A leave of absence for a definite period if leave will allow the employee to eventually return to work and perform the essential functions of the position. Fentin cautions against automatically terminating an employee who has exhausted FMLA leave, since an employee whose condition qualifies as a disability is entitled to a reasonable accommodation. Extra leave may be the accommodation that’s needed and considered reasonable under the law.
- Allowing a service or emotional support animal. This accommodation may be hard for some employers to swallow, Fentin says, but it should be considered in certain situations. She reminds employers that they can require an employee to provide documentation that a service animal has been trained to help with medical needs and won’t disrupt the workplace. Just because an employee might want an animal at work doesn’t constitute a reason to allow it.
Employers don’t have to accept accommodations deemed to pose an undue hardship on the employer. Fentin gives examples of accommodations that generally are not considered reasonable.
- Irregular, erratic, and unreliable attendance.
- A leave of absence for an indefinite period of time.
- Moving an employee’s office location away from coworkers with whom the employee needs to interact in order to perform the essential functions of the job.
- Creating an entirely new position.
- Providing a different supervisor, even if supervisor contact creates stress or anxiety, usually isn’t considered reasonable, but it may be depending on the situation. Fentin emphasizes that questions of undue hardship are highly fact dependent.
Need to learn more? Mental disabilities may not be as readily apparent as physical ones, so your obligations to provide reasonable accommodations for conditions such as anxiety, post-traumatic stress disorder (PTSD), and stress aren’t always clear-cut. When must you accommodate an anxious or stressed-out employee under the Americans with Disabilities Act (ADA)? How long do you keep an employee’s job open? What if your workplace is the cause of the worker’s stress or anxiety? And, perhaps most crucially, what should you do when you suspect a mental condition is affecting an employee’s job performance? For the answers to those questions and more, join us on October 25 for Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance Management Roadmap.