Need Help Determining if disability is ADA qualified
HR in VA
19 Posts
We have an employee who has had a history of performance problems and attendance problems. Last year summer she was out for about a month (FML), physician certified it as FML for "anxiety due to job stress." The doctor then returned her to work part-time for about a month, which we accommodated. The doctor then released her "full duty" 9/1/02.
In March, she was given a week's suspension for a performance related issue.
Employee has now accessed our state's complaint process, protesting the suspension as retaliation and harassment due to her disability. Claims she has an anxiety disorder that affects her concentration ability, so she needs to use sick leave when anxiety is increased.
From what I've read, it seems that we need to first determine if she is protected by ADA before we discuss accommodations, otherwise she will be perceived as having these protections. How exactly do we determine if this affects a major life activity?
In March, she was given a week's suspension for a performance related issue.
Employee has now accessed our state's complaint process, protesting the suspension as retaliation and harassment due to her disability. Claims she has an anxiety disorder that affects her concentration ability, so she needs to use sick leave when anxiety is increased.
From what I've read, it seems that we need to first determine if she is protected by ADA before we discuss accommodations, otherwise she will be perceived as having these protections. How exactly do we determine if this affects a major life activity?
Comments
A couple of questions...
Since returning to work, did she request an accommodation claiming stress, or were there any performance or conduct issues that she said was caused by stress? Or is this the first time that "an anxiety disorder" has come up in relation to any work problem following her return to duty? When the incident that warranted her being suspended was looked into and prior to the determination that she be suspended, did she give any explanation that "an "anxiety disorder" was the cause or a major factor of the performance problem, or is she now raising it AFTER the suspension was imposed? I assume the employee is now contending, "had you made accommodation for me the performance problem wouldn't have occurred and I wouldn't have been suspended." You certainly couldn't have retaliated against her for having an anxiety disorder or discirminate against her on that basis if you didn't know about the particular medical condition unitl after suspending her.
Under ADA, you are not required to accommodate a "disability" that is unknown to you. So, if she waited until AFTER the suspension to claim the disorder, that may weaken her contention related to why the suspension shouldn't be imposed. I realize that she went on leave last year and then came back. But if the doctor didn't place any restrictions on her following her return to duty, and she hadn't raised any issue about it since then, and it wasn't reasonable to connect a previous leave for "job-related stress" to the performance problem or even conceive that she had anxiety disorder, then you may want to argue that you are not required to change the suspension just because she is contending AFTER the suspension-imposition that the performance problem was caused by anxiety disorder.
Take a look at EEOC's "Guidance on ADA and Psychiatric Disabilities." You can check it out at EEOC's website [url]www.eeoc.gov[/url]. Click on "Laws, Regulations and Policy Guidances"; then click on Enforcement Guidances and Related Documents"; then scroll down to "EEOC Enforcement Guidance and Psychiatric Disabilities" issued in March 1997.
If the employee is claiming "anxiety disorder" that does require assessment. You would need to get verification from the treating practitioner. Have him identify what major life activities are impaired by the medical condition (after having asked to identify the condition). Remember, examples of major life activites are standing, walking, sitting, breathing, concentrating, lifting, etc. Indicate to the doctor what you mean by major life activities (don't lead him). Leave the question open. Then ask how the condition or to what extent the condition impairs the major life activity(ies). Have him describe it. Ask if the employee is taking any medication or other remedial measure that reduces or eliminates the condition and to what degree. Also ask if the remedial measure creates any impairments of major life activities. Ask if the condition is permanent or long term, and if long term, how long (ADA and EEOC haven't defined what "long term" means, but courts have generally gone along with about a year, although I think there was a recent case that took it down to about 7 or 8 months). Those are the questions most associated with the aspect of dealing with impairing major life activities.
There are other questions you can and should ask related to how the job is impaired as a result of the condition and what the doctor recommends as accommdations that would allow the employee to meet the essential duties of the job. Send the doctor a copy of the job description.
Leave the answers to the questions open. Don't set up any criteria for the doctor to meet. Let the doctor answer them based strictly on the condition of the employee not on what he or she thinks will get the employee off the hook. The employer makes the assessment based upon medical input fromt the doctor, talking to the employee and other reliable, relevant information. Remember, for a medical condition to be considered a disability affecting a major life activity, it must be permanent or long term; the assessment is made in view of any medication or other remedial measures the employee is using; and that the concept of "significance" is in comparison to the average individual (good luck on that one).
Also, remember that the medical condition has to be connected to a major life activity not just to work (that is now the way it is viewed based upon the recent US Supreme Court ruling). Work by itself is not a major life activity under that ruling.
I'm still a little confused about the "work by itself is not a major life activity". I don't think it will be an issue in this case since she is claiming the life activity of concentration. Thanks again.
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And you probably should think about consulting a lawyer in your state.
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