Shareholder Alicia Koepke Discusses Accommodating Mental Disabilities During and After the Pandemic in the Florida Bar Journal
Originally posted in The Florida Bar Journal, May/June 2021, Vol 95, No.3
The COVID-19 pandemic has caused increased stress, anxiety, and depression for many people, but particularly those suffering from preexisting mental illness. A variety of factors may play into such individuals not obtaining the help they need to succeed at work, including their fear of disclosing their disabilities due to the stigma associated with mental illness and the inability of others to identify mental disabilities that lack the visibility of physical disabilities. This article describes the rights and obligations of all parties when mental illness affects the workplace, and discusses how the changes to work environments during the pandemic may affect disability accommodation obligations even after the pandemic ends.
Mental Disabilities Under the ADA
The Americans with Disabilities Act (ADA) delineates the rights and responsibilities of applicants, employees, and private employers in this context. The ADA prohibits covered employers from “discriminat[ing] against a qualified individual[] on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” The ADA requires covered employers to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business.”
The ADA anti-discrimination and reasonable accommodation provisions apply to “qualified individual[s]” with a disability. “[D]isability” is defined as: “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” This article focuses on mental impairments that include “[a]ny mental or psychological disorder,” such as an “emotional or mental illness.”9
Under the ADA, an impairment meets the first prong of the disability definition (the actual disability prong) “if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” An impairment need not prevent or significantly or severely restrict an individual from performing a major life activity to be considered substantially limiting. Major life activities can include caring for oneself, eating, sleeping, concentrating, thinking, communicating, working, operating neurological and brain functions, and interacting with others.
Because a disability determination “requires an individualized assessment,” the U.S. Equal Employment Opportunity Commission (EEOC) regulations do not identify impairments as constituting per se disabilities. But the EEOC provides examples of impairments that “will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity,” including “major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia,” because they “substantially limit brain function.” Caselaw analyzing the ADA shows that other impairments, such as social anxiety disorder, postpartum depression, and separation anxiety can meet the ADA’s definition of disability as well.
Employer Knowledge of a Disability and Need for Accommodation
Disputes arise when employees fail to put their employer on notice of their mental illness or their need for an accommodation relating to such a disability. To start, an employer’s duty to accommodate does not arise unless the disability is “known” to the employer. An employee generally must notify an employer of his condition and need for an accommodation to trigger the employer’s obligation. Vague references to symptoms, such as depression, or requests for a change in the workplace without explaining how such requests are linked to a disability, are generally insufficient, as the First Circuit explained in Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001). In Reed, the First Circuit affirmed summary judgment in favor of an employer on a failure to accommodate claim because (among other reasons) the plaintiff failed to put her employer on notice of her bipolar disorder or the need for an accommodation due to her disability. The plaintiff’s vague reference to her therapist, who had previously sent notes to the employer saying the plaintiff was being seen for depression, were insufficient, in part because they “gave no notice of the aspect of her illness relevant to the accommodation she sought, namely, her psychological inability to control rage.”
A similar issue arose in Miller v. National Casualty Company, 61 F.3d 627 (8th Cir. 1995). In Miller, the plaintiff initially stated in a questionnaire that she did not suffer from a mental condition that limited her ability to perform her job. Later, she told her employer she needed a few days off to deal with stress, saying she “could not take the stress of [her] job and [her family problems] both at the same time.” The plaintiff then provided a note from a health-care provider stating the plaintiff had a “situational stress reaction.” The plaintiff’s sister told the employer that the plaintiff “was mentally falling apart and the family was trying to get her into the hospital.” But the plaintiff failed to tell her employer that she had a history of manic depression until more than a week after she had been terminated for failing to return to work or provide medical documentation supporting her absences. The employee’s post-termination notice was too little, too late; the Eighth Circuit affirmed summary judgment in favor of the employer because the employer did not have actual knowledge of the disability when it terminated her, and “it would have been impossible for the company to have made that disability the basis for the termination.”
Even after an employer learns that an employee has a disability, the employee generally needs to explain when or how the disability requires an accommodation. For example, in Russell v. TG Missouri Corp., 340 F.3d 735, 742 (8th Cir. 2003), an employee walked out in the middle of her shift, after being warned that doing so would constitute an unscheduled absence, telling her supervisor only that she needed to leave immediately and was “not feeling well.” The employee made no reference to her bipolar disorder or mental condition when leaving, which led the Eighth Circuit to affirm summary judgment against the plaintiff on her failure to accommodate claim.
Although these opinions may seem harsh at first blush, clear notice is necessary for employers to fully understand and evaluate their legal obligations — especially because employers do not have free reign to ask employees whether they are disabled, and many of the symptoms of mental illness do not put employers on clear notice of a disability because they are experienced by all individuals to some degree.
Evaluating Possible Accommodations
Once an employee puts the employer on notice of a disability and the need for an accommodation, the parties typically engage in an interactive process to determine the employee’s limitations and whether a reasonable accommodation exists to overcome the limitations. A reasonable accommodation is one that “enables [a qualified] individual with a disability…to perform the essential functions of [a] position.” Employers are not obligated to provide an accommodation unless doing so would allow the disabled employee to perform all of the essential functions of the position, and employers are not required to modify the essential functions or require other employees to perform a disabled employee’s essential functions.
The employer’s assessment of what constitutes an essential function merits “considerable deference.” As a result, employers should carefully prepare job descriptions, as illustrated in Hill v. Walker, 37 F.3d 1209, 1213 (8th Cir. 2013). In Hill, the job description for plaintiff’s “family service worker” position warned that “frequent exposure to physical and verbal abuse is required,” and deadlines combined with heavy caseloads “and the life and death nature of the work creates a stressful environment.” The plaintiff attempted to unilaterally remove herself from a case because she was experiencing stress and having anxiety attacks. But the Eighth Circuit held that plaintiff’s request for removal from a work case was not reasonable because it would have required another employee to assume plaintiff’s essential function.
When evaluating potential accommodations, naturally the starting point is the ADA, which provides a non-exhaustive list of measures that may constitute a reasonable accommodation, including “job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, [and] appropriate adjustment or modifications of examinations, training materials or policies.” When an employee may reasonably be accommodated in a variety of ways, the employer, “exercising sound judgment, possesses ‘ultimate discretion’ over these alternatives.” Naturally, the essential functions of positions and the ways in which employers may accommodate employees vary based on the position and individual at issue.
A common accommodation request is for an altered work schedule. In McMillan v. City of New York, 711 F.3d 120, 123 (2d Cir. 2013), the Second Circuit recognized that timely arrival is an essential element in “many, if not most” jobs, but held that it was not evident that it was an essential element of the plaintiff’s job. The plaintiff suffered from schizophrenia, and the side effects of his morning medication often resulted in his late arrival to work. After years of arriving late, a supervisor objected. The plaintiff requested a late start time, which his employer denied because it said the plaintiff could not work past 6 p.m. without a supervisor present. The Second Circuit emphasized that the company’s practice of allowing plaintiff to arrive late for years before objecting, together with the company’s flex-time policy, implied that punctuality at a specific time may not be essential for plaintiff’s position. The court found that the plaintiff met his burden of demonstrating that he could have performed the essential functions of his position with a reasonable accommodation by working through lunch and working late. In doing so, the court noted that the plaintiff’s request to work unsupervised in the evenings:
is not unlike a request to work from home. Both accommodations are potentially problematic because they are unsupervised. We have implied, however, that permitting unsupervised work might, in some cases, constitute a reasonable accommodation…. The majority of cases on this issue, however, find that requests to work without supervision are unreasonable.
Prior to the pandemic, there was a “general consensus among courts…that regular work-site attendance is an essential function of most jobs.” Employers are now concerned, though, that changes they were forced to implement during the pandemic, such as remote work, will set a precedent that will be used against them in subsequent accommodation claims, as evidence that such measures can reasonably be implemented and that on-site attendance is not essential. In response, the EEOC’s COVID-19 guidance recognizes that if an employer temporarily allows telework for COVID-19 safety reasons, it “does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.” But, the EEOC said that the COVID-19 telework arrangement could be relevant and serve as a trial period for evaluating future requests for telework as a reasonable accommodation. Consequently, employers should carefully evaluate and openly address whether telework during the pandemic has been effective.
Another common accommodation request is for time away from work for treatment. Under certain circumstances, courts have found a leave of absence to constitute a reasonable accommodation. But in Wood v. Green, 323 F.3d 1309, 1312 (11th Cir. 2003), the 11th Circuit held that an individual must be able to perform the essential functions of his job, with or without a reasonable accommodation, presently or in the immediate future to be “qualified.” Because the plaintiff in Wood requested multiple indefinite leaves of absences, the request was not reasonable and the plaintiff was not a qualified individual.
Finally, the ADA states that a reasonable accommodation may include reassignment to a vacant position, but it has been viewed by courts and the EEOC as an accommodation of “last resort.” One question that arises when a disabled employee seeks reassignment is whether he or she must compete with other employees for a vacant position. The EEOC’s position has been that an employer must provide the job to a disabled employee who is qualified for an existing vacant position, even if nondisabled applicants are better qualified. In U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002), however, the Supreme Court held the ADA ordinarily does not require an employer to reassign a disabled employee to an open position that another employee is entitled to receive under the employer’s “established seniority system.” The Fourth Circuit, in Elledge v. Lowes Home Centers LLC, 979 F.3d 1004, 1016 (4th Cir. 2020), applied the Supreme Court’s reasoning to a “best-qualified hiring system,” holding that reassignment of a disabled employee to an open position in contravention of an employer’s “best-qualified hiring system” ordinarily is not a reasonable accommodation. The 11th Circuit reached the same conclusion in EEOC v. St. Joseph’s Hospital, Inc., 842 F.3d 1333, 1346 (11th Cir. 2016), finding “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases,’” because “the ADA only requires an employer allow a disabled person to compete equally with the rest of the world for a vacant position.”
Another consideration in determining whether an employer is required to provide a reasonable accommodation is whether the accommodation would impose an undue hardship. In the ADA context, undue hardship means “an action requiring significant difficulty or expense, when considered in light of the [following] factors”:
(i) the nature and cost of the accommodation needed under this chapter;
(ii) the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(iii) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(iv) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
Misconduct and Direct Threats
As Reed demonstrates, disabled employees are not automatically immune from termination simply because their misconduct is related to their disability. In Reed, after the plaintiff yelled an expletive to her supervisor, challenged her supervisor to fire her and threatened to sue, her employer terminated her; in ruling against the plaintiff, the First Circuit said that the “ADA is not a license for insubordination at the workplace,” and the plaintiff’s attempt to request an accommodation after engaging in such misconduct was “too little, too late.” Recently, the First Circuit reiterated that position in Trahan v. Wayfair Maine, LLC, 957 F.3d 54, 65 (1st Cir. 2020), and described how misconduct by disabled employees relates to reasonable accommodation requests:
A requested accommodation that simply excuses past misconduct is unreasonable as a matter of law. After all, the ADA does not oblige an employer to accommodate an employee’s disability retroactively…. Where, as here, an accommodation request follows fireable misconduct, it ordinarily should not be viewed as an accommodation proposal at all. Such a request is better understood as a plea either for forgiveness or for a second chance.
In Trahan, the plaintiff, who suffered from PTSD, called her coworkers “bitches,” threw her headset, slammed her phone, and in a meeting with management rolled her eyes, crossed her arms, faced the wall and acted rude and unprofessional. As the First Circuit pointed out, the plaintiff only informed her manager that she had PTSD and requested accommodations after she was suspended and it became clear she might be fired.
The EEOC has likewise recognized that employers do not have to excuse a failure to meet conduct rules or production standards that are necessary for business operations (i.e., job-related and consistent with business necessity) and equally applied to all employees, even if the failure to meet such expectations is caused by an employee’s disability.
When an employee’s disability raises health or safety concerns, employers must evaluate their obligations to the other employees, in addition to the disabled employee. The Occupational Safety and Health Act (OSHA) requires employers to provide each of their employees with “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” And the ADA allows employers to implement, as a qualification standard, that employees not pose a “direct threat” to themselves or others. These obligations support the fact that “the ADA does not insulate emotional or violent outbursts blamed on an impairment.”
Like many other areas of life, good communication and increased education on all sides is the key to better understanding and accommodating individuals in the workplace who suffer from mental illness. Employees should endeavor to provide clear notice to their employers of their disabilities and the ways in which they need accommodations to perform their essential job functions. In response, employers should endeavor to carefully evaluate whether and how they can provide reasonable accommodations to those individuals. In doing so, employees and employers can help to lift the stigma that has surrounded mental illness and prevented people from seeking the help they need to have more fulfilling careers and lives. 42 U.S.C. §12101 et seq.  In addition to the ADA, eligible employees of covered employers under the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. (FMLA), are entitled to up to 12 weeks of unpaid leave and job protection if their mental illness constitutes a “serious health condition” that renders them unable to perform the functions of their position. Id. at 2611(11); 29 C.F.R. §25.113(d). But this article focuses on the obligations arising under the ADA. The Florida Civil Rights Act, Fla. Stat. §760.01 et seq. (FCRA), is often evaluated consistent with the ADA.  Subject to certain exceptions, “employer” means “a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.” 42 U.S.C.A. §12111.  The term “qualified individual” means “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C.A. §12111.  Id.  Id.  Id.  Part of the antidiscrimination provision also applies to qualified individuals who are protected from discrimination because of the known disability of an individual with whom the qualified individual is known to be associated or related. Id.; 29 C.F.R. §1630.8. But the ADA does not require employers to reasonably accommodate the disabilities of individuals associated with applicants or employees. 29 C.F.R. §1630.8 App.; Alicia H. Koepke, Adverse Employment Actions Based on Associational Disability Discrimination, 92 Fla. B. J. 52 (Sept./Oct. 2018).  42 U.S.C.A. §12102. “An individual meets the requirement of ‘being regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited [by the ADA] because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. The “regarded as” disabled prong of the definition of disability does not apply to impairments that are “transitory and minor. A transitory impairment is an impairment with an actual or expected duration of [six] months or less.” Id.  29 C.F.R. §1630.2.  Id.  Id.  42 U.S.C.A. §12102.  Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 573 (4th Cir. 2015).  Id. at 574 (reasonable jury could find that the plaintiff, who suffered from social anxiety disorder, was disabled because she was substantially limited in her ability to interact with others).  Hostettler v. College of Wooster, 895 F.3d 844, 853 (6th Cir. 2018) (employee suffering from severe postpartum depression and separation anxiety “plainly” met the ADA’s definition of disability).  42 U.S.C.A. §12112.  “Thus, an employer would not be expected to accommodate disabilities of which it is unaware….In general…it is the responsibility of the individual with a disability to inform the employer that an accommodation is needed.” 29 C.F.R. §Pt. 1639, App.  Reed, 244 F.3d 261. As discussed below, she eventually did, after verbally abusing her supervisor, but it was too late.  Id. at 262. “Sometimes the employee’s disability may prevent the employee from requesting an accommodation, or sometimes the employee’s need for an accommodation will be obvious; and in such cases, different rules may apply.” Id. at 261, n.7.  Miller, 61 F.3d at 630.  Id.  Discriminating under the ADA includes making medical inquiries or examinations that are not authorized. 42 U.S.C.A. §12112. Prior to making a job offer, employers cannot conduct medical examinations or ask candidates about the existence, nature, or severity of any disability, although they can ask applicants if they are able to perform job-related functions. Id. After making an offer, but prior to an applicant beginning employment, an employer can require such individual to submit to a medical examination and condition the employment offer on the results of such an exam, but only if all entering employees are given such an exam and the results are used in accordance with the ADA. Id. After employment commences, employers remain free to ask employees if they are able to perform job-related functions, but cannot ask employees about the existence, nature, or severity of any disability, or require a medical examination, unless the test or inquiry is “job-related and consistent with business necessity.” Id. When an employee requests an accommodation and the need for an accommodation is not obvious, an employer can require the employee to provide documentation reflecting the need for accommodation. 29 C.F.R. §1630.9 & 1630.14(c) App.  29 C.F.R. §1630.2(o)(3); Hostettler v. College of Wooster, 895 F.3d 844, 853 (6th Cir. 2018). Employers are not required to accommodate an individual who meets the definition of disability only under the “regarded as” disabled prong. 42 U.S.C. §12201(h); 29 C.F.R. §1630.9(e).  29 C.F.R. §1630.2(o)(1)(ii).  Jacobs, 780 F.3d at 581.  Elledge v. Lowes Home Centers LLC, 979 F.3d 1004, 1013 (4th Cir. 2020).  Id. at 1009.  “[C]onsideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C.A. §12111.  Hill, 37 F.3d at 1209.  Id. Because the plaintiff refused to accept the other accommodations offered and could not show she was able to perform the essential function of her position with a reasonable accommodation, her employer was entitled to summary judgment in its favor. Id.  42 U.S.C.A. §12111 (emphasis added).  Elledge, 979 F.3d at 1011.  McMillan, 711 F.3d at 126.  Id. at 129, n. 4. Whether the plaintiff could reasonably perform his job without supervision, the court noted, would need to be considered on remand.  Credeur v. Louisiana Office of Attorney Gen., 860 F.3d 785, 793 (5th Cir. 2017); Hostettler v. College of Wooster, 895 F.3d 844, 854 (6th Cir. 2018).  U.S. Equal Employment Opportunity Commission (EEOC), What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  29 C.F.R. §1630.2(o) App.  Id. at 1314.  42 U.S.C.A. §12111.  Elledge, 979 F.3d at 1014; 29 C.F.R. §1630.2(o) App.  EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1345 (11th Cir. 2016).  However, an employee “remains free to show that special circumstances warrant a finding that, despite the presence of a seniority system (which the ADA may not trump in the run of cases), the requested ‘accommodation’ is ‘reasonable’ on the particular facts.” Id. at 405.  Elledge, 979 F.3d at 1349.  42 U.S.C.A. §12111.  Reed, 244 F.3d at 259. The plaintiff needs to show not only that the proposed accommodation would enable him to perform his essential job functions, but also that it is facially practicable for the employer to provide it. Id. If the plaintiff meets his burden, the employer has the burden to show the proposed accommodation is not feasible. Id.  Id. at 262.  Id. at 262, n. 9.  Trahan, 957 F.3d at 66-67 (affirming summary judgment for employer). The First Circuit also found the accommodation requests were not reasonable, in part because there was no reason to believe reassignment would have enabled plaintiff to work professionally and collaboratively with another team, and the employer did not yet have remote work capabilities. Id.  EEOC, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, https://www.eeoc.gov/laws/guidance/mental-health-providers-role-clients-request-reasonable-accommodation-work; EEOC, Applying Performance and Conduct Standards to Employees with Disabilities, https://www.eeoc.gov/laws/guidance/applying-performance-and-conduct-standards-employees-disabilities#fn38; 42 U.S.C. §12112(6) (prohibited discrimination includes “using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and is consistent with business necessity.”  29 U.S.C. §651 et seq.  Id.  The ADA defines “direct threat” as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”42 U.S.C. §12111(3) (emphasis added). The EEOC regulations expand on the definition, interpreting “direct threat” to mean “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. §1630.2(r) (emphasis added); see also 29 C.F.R. §1630.15(b)(2) (“a ‘qualification standard’ may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace.”) (emphasis added). In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 76 (2002), the Supreme Court upheld the EEOC’s expanded interpretation of “direct threat” as including self-harm, finding that the ADA permits the EEOC’s regulation to authorize an employer to refuse to employ an individual whose job performance would endanger his own health (assuming the threat could not be eliminated or reduced through reasonable accommodation).  Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1052 (5th Cir. 1998). The Fifth Circuit affirmed summary judgment in favor of the employer, finding that the plaintiff was terminated because of his “egregious and violent behavior,” not because of his PTSD. Id.