People often say they are anxious or depressed, without those comments reflecting clinical depression or anxiety. Employers need to be careful in how they evaluate the ADA implications when employees make such a disclosure.

In the case of Hurtt v. International Services, Inc. (6th Cir. Sept. 14, 2015), Hurtt was hired as a business analyst with a $70,000 annual draw and a 12% commission. Additionally, the company prepaid his travel expenses and allowed a $40 per diem food allowance. Several months after Hurtt was hired, he became exhausted, depressed, and anxious, and provided the company with a letter from his therapist stating that he had acute anxiety and depression. One day after he requested FMLA leave, the company terminated his $70,000 annual draw and placed him solely on commission and also terminated providing prepaid travel expenses. Hurtt quit and sued, claiming constructive discharge under the ADA and FMLA.

In permitting the case to go to a jury, the Court said a jury may conclude that eliminating Hurtt’s guaranteed salary and prepaid expenses after he disclosed his medical condition could be constructive discharge, where the employer “deliberately created intolerable working conditions” such that a  reasonable person would quit. The Court also said that “a complete failure to accommodate” under the ADA may also be a basis for constructive discharge.

In Barber v. Subway (M.D. Penn., Sept. 18, 2015), an employee worked for two weeks on the sandwich line, at which point she had an anxiety attack, was told by the owner to leave, did not show up for subsequent shifts, and was terminated for job abandonment. The Court ruled that it was a jury question whether the employer failed to accommodate her anxiety disorder under the ADA. .

The employer argued that it actually accommodated the employee by sending her home early, and kept her on the schedule. However, the Court said that “an objective and reasonable juror could fairly construe [the owner’s] words and actions as a termination of Barber’s employment, and Barber’s failure to return to work is proof of her belief that she was terminated.” During the pre-employment interview, Barber told the owner that she suffered from an anxiety disorder and may have an episode at work. The owner said that was not a problem and proceeded to hire her.

When an employee attributes a performance, behavior, attendance, or attitude issue to anxiety, depression, stress, or a similar condition, an employer has the right to request medical substantiation of the extent to which the condition may interfere with work, and, if so, what accommodations may be possible, if any. (Though such requests should be narrowly tailored and should include Genetic Information Nondiscrimination Act disclaimers). Use your rights to evaluate the need for accommodation. Do not dismiss employee comments with the approach of “well, everybody has that from time to time.”