Dealing effectively with employees who have depression and work restrictions can be challenging. This is especially true when the doctor’s note implies that an accommodation is needed that seems unreasonable. What can an employer do? In a recent CER webinar, Patricia Eyres gave us some guidance on how employers can react in these situations. Here are some examples of the questions answered during the webinar:
Q. Can a healthcare provider dictate a change in manager, supervisor or workgroup as an accommodation for an employee with depression?
A. The short answer is no—the doctor can’t dictate what the reasonable accommodation is. They try to do it all the time, but really that is an example of the healthcare provider saying what accommodation should be given. This determination should be made by the employer, not the healthcare provider. It is the healthcare provider’s responsibility to give you functional limitations and work restrictions. We frequently see healthcare providers stating that someone needs a different supervisor or needs a different department—because that’s what the patient is telling them.
You can balance that out by asking for specific work restrictions as it relates to the essential job functions and asking what is it about the department or work team or supervisors that is resulting in stressors that are impacting this employee. In other words, employers need to use the interactive process to go back to the doctor and get the appropriate information.
Ask that healthcare provider for the employee’s functional capacity, functional limitations, and work restrictions as they relate to the essential job functions. (Be sure you tell the healthcare provider the essential job functions specifically). Ask which of these essential job functions are affected by this particular work group or work team or department. Ask what the essential job functions [are] in working with this supervisor that are impacting the health and well-being and functional capacity of the patient.
Q. We have an employee who has provided documentation from her medical provider stating that she needs to be out of the office until further notice due to stress incurred in the workplace related to her relationship with her supervisor. The employee is not eligible for FMLA. However, she does have annual personal and sick leave available. I understand that she should be able to exhaust all leave, but then what? Should the leave of absence request be done? Should we start the reasonable accommodation process?
A. I would do a reasonable accommodation process. After she’s exhausted all her leave (or is ineligible) and the doctor has said leave is needed “until further notice,” then the leave should be considered as a possible reasonable accommodation. However for this accommodation to qualify as reasonable, the medical provider must be able to state a finite expected duration to allow the employee to recover sufficiently to return to work with or without restrictions. If the leave would be indefinite, then there’s no reasonable accommodation.
You can even ask the medical professional this question specifically (whether or not a finite leave would allow the patient to recover enough to perform essential functions, with or without restrictions). If the doctor says it won’t help or is unable to tell you or cannot give a duration for the leave, then it is no longer a reasonable accommodation. If the answer is yes (a leave would be beneficial), determine the length of time that would be appropriate. If the doctor cannot put a timeframe on it, again, it’s not reasonable.
Q. Is it appropriate for senior management to know that an employee attempted suicide?
A. I don’t think so. However, there are a lot of things that managers know not because HR has told them, but because they have other ways of knowing. Is it appropriate to get that officially? No. Do we have situations where people will find out anyway? Of course. The employee could tell this. Social networks may tell this, etc. (Social networking between employees and subordinates is risky for many reasons!) It’s important for front-line leaders to know that if they learn that information from other sources, they can’t use it to discriminate.
The above information is excerpted from the webinar “Depression in the Workplace: Your ADA and FMLA Obligations Explained.” To register for a future webinar, visit CER webinars.
Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.
One other thing to keep in mind is confidentiality. I just read about a case where a supervisor told an employee’s coworkers that she had bipolar disorder, and the court allowed the employee’s subsequent claims against both the employer and the supervisor for public disclosure of private facts. Such disclosure likely violates federal and state statutes, too.
One other thing to keep in mind is confidentiality. I just read about a case where a supervisor told an employee’s coworkers that she had bipolar disorder, and the court allowed the employee’s subsequent claims against both the employer and the supervisor for public disclosure of private facts. Such disclosure likely violates federal and state statutes, too.