Employee with Depression

February 15, 2006

Question

An employee with major depression is often late for work because of medication side-effects that make him extremely groggy in the morning. His scheduled hours are 9:00 a.m. to 5:30 p.m., but he arrives at 9:00, 9:30, 10:00, or even 10:30 on any given day. His job responsibilities involve telephone contact with the company's traveling sales representatives, who depend on him to answer urgent marketing questions and expedite special orders. The employer disciplines him for tardiness, stating that continued failure to arrive promptly during the next month will result in termination of his employment. A day after the notice was issued, the employee provided our Human Resources department with a notice of disability, which claims that the poor job performance and tardiness was a result of the disability. Can the employee still be terminated if he does not adhere to the goals prescribed in the notice from his manager?

Answer

Many employees find it difficult to request accommodations, especially for psychiatric issues. They fear that it will only increase problems in the workplace. The EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities issued by the Equal Employment Opportunity Commission states: "An employee's decision about requesting reasonable accommodation may be influenced by his/her concerns about the potential negative consequences of disclosing a psychiatric disability at work." (Source: www.eeoc.gov/policy/docs/psych.html)

While an employer is not obligated to provide reasonable accommodation if it has no knowledge of the disability, some consideration of this request should be made. The Americans with Disabilities Act Title I Technical Manual states: "Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the qualified individual with a disability."

In the scenario presented above, it would certainly indicate a good faith effort to comply with the ADA if the employer considered accommodation for this employee. Since the job requires timely answers to urgent questions, it may be that arrival on time is an essential function of the job that can not be accommodated. If there is no way to accommodate this individual in his current position, then consideration should be made to move the person to a vacant position, or one that will soon be vacant, in which they can be accommodated.

The need for accommodation should not be a deciding factor in employment decisions. The Title I Technical Assistance Manual states "an employer or other covered entity cannot prefer or select a qualified individual without a disability over an equally qualified individual with a disability merely because the individual with a disability will require a reasonable accommodation. In other words, an individual's need for an accommodation cannot enter into
the employer's or other covered entity's decision regarding hiring,
discharge, promotion, or other similar employment decisions, unless the accommodation would impose an undue hardship on the employer." (Source: www.adaportal.org/Employment/Browse_TAM_I/Browse_TOC.html)

An employer can hold employees with disabilities to the same standards of production and performance as other similarly situated employees without disabilities in performing essential job functions (with or without reasonable accommodation). Employees with disabilities should not be given "special treatment", nor should they be evaluated on a lower standard than others in the workplace. This would not reflect an equal employment opportunity.

With our shrinking pool of available employees, it makes sense to consider people with disabilities as valuable assets for the future of any company. The Americans with Disabilities Act does not require any preference for people with disabilities, but simply requires fair consideration for all.

Learn more about reasonable accommodation in the workplace, by reading the:
EEOC Enforcement Guidance on Reasonable Accommodation at www.eeoc.gov/policy/docs/accommodation.html.

Disclaimer

The Southeast Disability and Business Technical Assistance Center (DBTAC) is authorized by the National Institute on Disability and Rehabilitation Research (NIDRR) to provide information, materials, and technical assistance to individuals and entities that are covered by the Americans with Disabilities Act (ADA) under Grant #H133D010207. However, you should be aware that NIDRR is not responsible for enforcement of the ADA For more information or assistance, please contact the Southeast DBTAC via its web site at www.sedbtac.org or by calling 1-800-949-4232 (TTY/voice).