What do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.
We have talked before about your general obligations under the ADA. So, as a brief refresher, here are some steps to follow once your employee says he or she is suffering from a mental disability and needs a reasonable accommodation:
STEP ONE: Engage in the interactive process.
The ADA requires that you engage in an interactive process, so talk with the employee.
- With which essential functions does the employee struggle?
- What reasonable accommodations does the employee think would enable him or her to perform those functions?
- What, if any, restrictions has the doctor provided?
Your first discussion is for you to collect information, so let the employee do the talking. Don’t assume that this employee’s depression/anxiety disorder/PTSD is the same as another employee’s or anyone else’s. You can and should get the employee’s doctor’s input on this. I have found that what employees want and what their doctors say they need are not always the same thing. Keep your questions about the disability job-related and consistent with business necessity. This is a process, so it could take several conversations. Be sure to document it thoroughly.
STEP TWO: Determine if the requested accommodation is reasonable.
A reasonable accommodation enables the employee to perform the essential functions of a job. A request is not reasonable if it eliminates an essential job function, poses a direct threat of imminent harm, or imposes an undue hardship.
Keep an eye on the essential functions of the job. You do not have to remove essential functions and create a new job for the employee. You may, however, have to reassign or eliminate non-essential functions. In assessing whether the employee’s performance of the job poses a direct threat, be objective. Get expert input on whether any proposed changes would work or if they would increase danger. Whether the proposed accommodation poses an undue hardship, such as by dramatically increasing costs or effecting productivity, is also a consideration, but in practice, that can be tough to prove.
Look carefully at the employee’s requested accommodation and if you don’t think it is reasonable, offer an alternative. Again, this is an interactive process. Feel free to get the doctor’s input.
STEP THREE: If you can’t accommodate, is transfer or leave an option?
If you cannot come up with a way for the employee to safely perform the current job, do you have a vacancy in which you can accommodate the disability? You do not have to displace someone or create a new position, but you should consider all vacant positions. If the employee is qualified for the vacant job, offer it as a reasonable accommodation. The employee does not have to compete for the position but does have to take the position as it is—even if it pays less, is on a different schedule, etc. Unlike an FMLA-related transfer, this is not a temporary move.
If you can’t accommodate and have no vacancies, your last resort is to determine if leave is a reasonable accommodation. Ask the employee if taking some leave would enable him or her to return to work and do the job’s essential functions. With mental disabilities, this could be a period of inpatient or outpatient treatment or medication adjustment. You should consider this option even if there is no FMLA available and you don’t have a company leave policy. It should be well-defined (i.e., one week, one month), and you do not have to grant open-ended leave.
If you can’t accommodate, and transfer or leave is not an option, you may have to terminate an employee. Before taking that final step, make sure you have properly documented your process and can prove how reasonable you have been. Of course, I think you should have your employment lawyer on speed dial but at the very least, talk to your lawyer before you terminate.