Dealing with the unseen: Tips for traversing legal terrain of hidden disabilities

March 19, 2017 - by: Tammy Binford 0 COMMENTS

Work can be stressful for anyone, and employers are wise to ease the burdens when possible in the interest of maintaining productivity and the general well-being of the workforce. But disabilities can complicate the issue, especially when the disability isn’t obvious.  man with stressed face expression brain melting into lines

Human resources professionals may be well aware that the Americans with Disabilities Act (ADA), as well as the ADA Amendments Act that broadened the law’s protections in many cases, require employers to provide qualified employees who have a disability an opportunity to be productive at work by engaging in the “interactive process” and providing “reasonable accommodations.”

The concept is simpletalk to an employee with a disability about what will make him or her capable of performing the essential functions of the job and then come to agreement on any necessary and reasonable adjustments to the job or workplace. Although the concept is simple, the details clearly aren’t.

Patrice Nagle, an attorney with Fisher Phillips LLP in San Diego, recently conducted a Business and Legal Resources webinar titled “Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance Management Roadmap” in which she passed along a number of tips for employers searching for reasonable accommodations that represent a win for both the employer and employee.

Effective accommodations

“No two people are the same, and neither are their jobs,” Nagle says. Therefore employers and employees have to sit down together and determine how to accommodate someone with an unseen disability, such as post-traumatic stress disorder, bipolar disorder, obsessive compulsive disorder, and even extreme stress and anxiety.

Nagle stresses that employers aren’t obligated to provide any accommodation an employee might request, but employers must consider how to accommodate the employee unless it’s determined that no accommodation can be provided without it resulting in an undue hardship for the employer.

What’s considered “undue hardship”? That’s often hard to define and must be considered on a case-by-case basis, “but the courts have always tended to lean toward the economic impact” an accommodation would have on the employer, Nagle says.

Accommodations Nagle has found effective include:

  • Making facilities accessible.
  • Job restructuring.
  • Modified work schedules.
  • Work-at-home arrangements.
  • Transfers or reassignments.
  • Leaves of absence.
  • Acquiring or modifying equipment or devices.
  • Adjusting or modifying exams, policies, training, and supervision practices.
  • Providing qualified readers or interpreters.
  • Accommodating the residual effects of a disability by providing time off for doctor visits, etc.

Although effective, some of Nagle’s suggestions can be tricky. For example, job restructuring may sound burdensome for an employer, but the employer doesn’t have to reallocate any essential functions of a job.

Nagle provides the example of a customer service representative who is subject to panic attacks requesting being relieved of the responsibility of handling telephone calls. Since handling calls is an essential function of the job, the employer isn’t required to change the job to accommodate the employee.

A modified work schedule can be helpful for an employee with a mental disability, but how far does the employer need to go? Nagle says permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to a disability is usually seen as a reasonable accommodation unless or until the employee’s absence imposes an undue hardship on the employer.

Another way to modify a work schedule is to allow an employee to change his or her regularly scheduled hours, Nagle says. For example, some medications taken for psychiatric disabilities cause grogginess and lack of concentration in the morning. Depending on the job, a later schedule may enable the employee to hold down the job.

Allowing an employee to work at home is an accommodation courts have found to be reasonable, Nagle says, but it’s not considered reasonable if the job requires close supervision and close coordination with coworkers.

Transferring or reassigning a worker sometimes is a good option, but the employer needs to be careful. Nagle says a transfer should be to a vacant position, and the employee must be qualified for the job. The employer isn’t required to bump another employee to accommodate the employee with a disability. Also, the transfer can be to a position that pays less but only if no accommodation can be made in the employee’s current position and no positions are vacant at the same level.

Nagle says a transfer is usually seen as an accommodation of last resort because it “opens you up to some potential liability down the road.” An employee may later say that the transfer was a move down and constituted unlawful discrimination.

Accommodations NOT required

Employers are not required “to provide a stress-free work environment,” Nagle says. “Work is sometimes stressful.”

Likewise employers aren’t required to rescind discipline assessed because of poor performance if the employer had no knowledge of the need for a reasonable accommodation. The employer must, however, begin the interactive process, if discipline was other than termination, by discussing with the employee how the disability affects performance and what accommodation may help improve it.

Safety is another factor in deciding whether an employee can be accommodated. Nagle says the ADA allows employers to exclude employees for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.”

What constitutes a direct threat? Employers have to be careful. “Just because someone is creepy does not necessarily mean that they are a direct threat,” Nagle says. The key term is “objective evidence.” “It’s not enough to just speculate,” Nagle says.

 

Need to learn more? Listen to “Anxiety, Workplace Stress and PTSD: HR’s Accommodation and Performance Management Roadmap” on demand. Attorney Patrice Nagle covers when you must accommodate an anxious or stressed-out employee under the ADA,  how long do you keep an employee’s job open, what to do if your workplace is the cause of the worker’s stress or anxiety, and, perhaps most crucially, what you should do when you suspect a mental condition is affecting an employee’s job performance. She will also discuss case studies of recent situations involving anxious workers, what to do if an employee has a panic attack while at work or claims he or she can’t report to work because of one, and more. For more information, click here.

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