One of your employees fails to return to work following a leave. Despite repeated attempts to contact her, you hear nothing and receive no explanation for her continued absence. Finally, you terminate her. But then she turns around and sues you for violating the Americans with Disabilities Act, claiming she was having a manic depressive episode when she abandoned her job and she deserves a second chance. This may sound farfetched, but it’s exactly the situation one California employer recently faced.
Employee Doesn’t Come Back To Work
Catherine Brundage was a deputy assessor for the County of Los Angeles. She was frequently absent from work and had taken a medical leave to participate in a 14-day drug rehabilitation program. Several months later, Brundage took a three-day emergency ‘vacation’ and then didn’t return.
When the County couldn’t reach her by telephone, it sent her two letters warning that unless she returned or explained her absence, she would be terminated. When she failed to respond, Brundage was fired for abandoning her job.
The County didn’t hear from Brundage for more than six weeks.
It turned out that she had been diagnosed as manic depressive several months before she disappeared, but never told her employer.
Brundage claimed a medication change triggered a manic episode, which was why she failed to contact the County. When her doctor cleared her to return to work, the County refused to rehire her.
Did Employer Know About The Problem?
Brundage sued for disability discrimination, arguing the County fired her because of her mental disability and then failed to ‘reasonably accommodate’ her when it refused to reinstate her to her old position. But the County claimed it couldn’t have discriminated against Brundage because it didn’t know she suffered from a disability when she failed to show up for work.
The Court of Appeal sided with the County. It held that to be liable under the ADA, you must actually know a worker is disabled-either because the person told you or because their impairment was so obvious that you should have known.
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Knowing Who Is ‘Disabled’ Is Tricky
Employers are encountering a growing number of mental disability claims, with more and more employees saying they suffer from conditions like depression and attention deficit disorder. But, unless a worker comes right out and asks for an accommodation, it can be difficult to know whether they have an ADA-protected disability-or are simply unreliable.
The new court decision suggests that vague statements about personal problems, a history of absenteeism, poor work performance or past drug problems will usually not be enough to put you on notice that the employee has a disability requiring accommodation.
However, keep in mind that an employee isn’t required to specifically use the term ‘reasonable accommodation’ in order to request one. In fact, the Equal Employment Opportunity Commission has taken the position that merely asking for time off because of stress or depression could be sufficient to inform you the person needs an accommodation for a psychiatric condition.
Practical Approaches
Although every case is unique, here are some general guidelines to help you deal with these complex situations:
- Establish a policy in advance. Because it’s often difficult to determine whether a worker has a mental disability, take steps in advance to protect yourself if an employee fails to clearly communicate that they need an accommodation. The best approach, according to Mary Maloney Roberts, a partner with the Emeryville law firm of Corbett & Kane, is to have a written policy. It should spell out that workers have the right to receive a reasonable accommodation for covered mental or physical disabilities, but that it’s the employee’s responsibility to tell you if they are disabled or need assistance. Then, if an employee doesn’t speak up and later sues, you’ll be in a stronger position to argue that you never knew the person needed help.
- Encourage employees to ask for help. Even if you have a policy like the one mentioned above, you may notice a problem the employee hasn’t brought up. In those cases, Roberts recommends telling the employee that you’ve observed a change in their behavior, and although you don’t want to intrude on their privacy, you do want to give them the opportunity to receive help if they need it.
Never ask directly whether the employee has a psychological problem. Inform the worker that they may be entitled to a leave or other medical benefits, and furnish copies of your policies covering disability, accommodation and medical and family leave.
- Look for reasonable accommodations. Figuring out how to accommodate a mental disability can sometimes be more complicated and require more patience than dealing with a physical impairment. For example, someone suffering from attention deficit disorder may need a quiet workplace and uninterrupted time to perform paperwork or they may need training in how to use memory tricks.
- Notify the worker. In the Los Angeles County case, the court ruled that your duty to reasonably accommodate disabled employees does not include giving a ‘second chance’ to employees who abandon their jobs or fail to control a controllable disability.
To help establish that an employee has abandoned their job, always send a letter and a follow-up if necessary, notifying the worker that their absence is unexcused and providing them with the opportunity to explain or submit documentation as to why they haven’t returned. If you set a reasonable deadline and the person doesn’t respond, it is unlikely a court will say you have a duty to take them back.
Other Resources
In some cases you may need outside help to assess how an employee’s condition can be accommodated. Contact your employee assistance program if you have one or the Job Accommodation Network at (800) 526-7234 for free advice.