By Mark F. Kluger and William H. Healey
Mets fans are mentally tough, just like employment lawyers. After a recent devastating loss though, the emotional torment may have been too much for even the most seasoned, resulting in the offer by online mental health resource, UMA Health: Hey Mets Fans! Let’s get you some free therapy….Email your most difficult Mets moment for your free therapy session. We hope you (and the team) do better soon.
But it’s not just Mets fans who suffer from mental health issues. Employees are increasingly presenting employers with diagnoses of mental health disorders and seeking time off or accommodations. Instinctively, many employers react skeptically. There are no x-rays or scars. Yet the National Institute of Mental Health estimates that roughly 44 million American adults reported some mental health condition in the last year. Among those with diagnoses, 18% have an anxiety disorder and 9.5% report depression. And here lies the problem for employers: Many employees attribute the causes of their anxiety or depression to work-related stress emanating from workload pressures or their Michael Scott-like boss (look it up).
Not coincidently, these diagnoses often emerge when the employee is on the verge of discipline or discharge for poor performance, excessive absenteeism and/or insubordination. The dual dilemmas for employers are that (1) although anxiety and depression can no doubt cause a decline in job performance, an employer can’t know if the diagnosis is real or just an excuse to prolong employment, and (2) equally as important, even if the employee truly suffers from those aliments, employers cannot be expected to allow poor performance to continue regardless of the reason. Add to those concerns that employees blame the job or the boss for the conditions, and it’s no wonder employers hit the bottle so heavily…sorry we mean…do Yoga.
A recent federal appellate court case has helped sort this out a bit. In that case, an HR professional, of all people, notified her employer that she suffered from mental disabilities caused primarily by her Cruella de-Boss, who she contends was insensitive to her when her mother died. After taking FMLA leave, the employee’s doctor suggested an accommodation in which she would return to work on a part-time basis temporarily and then full-time but in a “lower-stress department” with a different supervisor. The employer responded that she could ease back on a part-time basis but still under Cruella. That was the required interactive process. The employee rejected the proposed accommodation and the employer gave her a permanent vacation. Her ADA-based lawsuit alleged that the employer did not engage in a good-faith effort to reasonably accommodate her stress and anxiety disorder.
Thankfully, the court came to the employer’s rescue stating, “reasonable accommodation does not entitle an employee to a supervisor ideally suited to her needs” (good thing for us because we’re not ideally suited to anyone’s needs). Even a California state court, not known for sticking up for employers, wrote, in a similar case, “the inability to perform one particular job or to work under one particular supervisor does not constitute a qualified disability.” So if the anxiety or depression is caused by the stress of the particular job or the boss, employers are not obligated to shuffle the deck to help an employee ditch job duties or their not-so-beloved supervisor.
In guidance directed to employees, the EEOC takes a somewhat moderate position (for a bunch of Commie…..hold on… Namaste…ok all good) writing, “Because employers do not have to excuse poor job performance, even if caused by a medical condition…it is generally better to get a reasonable accommodation before any problems occur.” Good advice. The EEOC also warns employers faced with an employee diagnosis of a mental health condition to “not to rely on myths or stereotypes” in determining if an employee can perform the essential functions or poses a risk to themselves or others.
Lest you think that the EEOC itself has gotten reasonable, here are a few of the agency’s suggested “reasonable accommodations” for employees suffering from anxiety or depression:
- Altered break or work schedules;
- Quiet office space or devices that create a quiet work environment;
- Changes in supervisory methods (g., written instructions instead of oral);
- Permission to work from home.
Here’s a better approach: Keep in mind that once an employee opens the door to discuss accommodations, an employer has a lot of leeway to require specific information from the medical professionals who have made the diagnosis and suggested the accommodations. Take advantage of the opportunity to insist on details about what the employee can and cannot do–and why. Because it is common for these anxiety/depression diagnoses to come from Internal Medicine docs, also consider sending the employee to a mental health professional for an independent exam, the results of which may provide a strong defense to an ADA claim.
For the true Mets fans, you don’t need a shrink, you just gotta believe.