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Vol. 46, No. 2
Don't let the difficulties of handling employees' emotional conditions drive you crazy.
As an HR professional, you are probably used to hearing requests from employees for special treatment. In particular, you probably have heard an increasing number of comments such as these:
As you know all too well, these are more than mere hypotheticals. Increasingly, employees are claiming they suffer from emotional conditions that affect their work performance—and they are asking employers to change their jobs as an accommodation under the Americans with Disabilities Act (ADA).
This article focuses on proactive policies and practices to deal with emotional conditions that cause ripple effects that are felt in the workplace. While the recommendations are focused specifically on emotional disabilities, many will apply equally to physical disabilities.
When the ADA was enacted, employers appropriately incorporated into their job descriptions the relevant physical demands of their jobs. Now, if a job requires lifting, pushing or pulling, the job description usually mentions how much and how often these tasks are to be performed.
However, job descriptions often are silent with respect to the “emotional” requirements of a job. While it would not be practical to include in job descriptions the level of mental health we seek from applicants, what employers can and should do is update job descriptions to include the interpersonal skills or emotional competencies (expressed in the form of behavioral attributes) required of a job.
For example, here are some of the emotional competencies that could be included in a job description for an executive-level position:
Once the job description has been updated to include these emotional competencies, employers can ask questions in job interviews to determine if applicants possess the emotional capabilities the job demands. But employers must do so without directly inquiring about the applicant’s emotional state, which is prohibited by the ADA.
How can you legally walk this fine line? Consider the example of the executive job description, which includes the need for decisiveness. To measure this competency, you might ask applicants to tell you about a time when they had to make a critical decision quickly, with limited information. Ask them to explain not only the problem and their decision, but also their thought process in getting there.
By asking situational questions aimed at assessing behavioral attributes associated with emotional competencies, employers can determine an applicant’s strengths in certain areas—without directly inquiring about or testing for emotional wellness. In other words, emotional limitations may manifest themselves in the answers the applicant gives without the emotional conditions themselves becoming an issue.
Including behavioral attributes in job descriptions also can have value when dealing with existing employees. If an employee with an emotional disability requests an accommodation that would be inconsistent with these job requirements, the accommodation is more likely to be found unreasonable.
For example, assume an employee has obsessive compulsive disorder, which causes her to revisit issues continually and renders her unable to reach conclusions quickly. Does the employer have to accommodate the employee’s lethargy in decision making?
If the job description is silent on decisiveness, the employer may need to accommodate this deficiency. Conversely, if the job description makes clear that “decisiveness” and “bias toward action” are essential to the job, an employer’s refusal to make accommodations that are inconsistent with these behavioral attributes becomes more defensible.
For example, in the case of Carrozza v. Howard County, 1995 U.S. App. LEXIS 387 (4th Cir. 1995), an employer did not have to eliminate essential job functions to accommodate an employee with bi-polar disorder (or manic depression).
Admittedly, subjective requirements are easier to challenge legally than objective ones. This was borne out in the case of Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313 (3d Cir. 2000), where the court noted that “subjective evaluations are more susceptible of abuse and more likely to mask pretext.” But the business risk of ignoring subjective factors often is greater than the legal risk of considering them.
Reasonable Accommodation Policy
Employers must accommodate only those disabilities they are aware of. If an employer is unaware that an employee has a disability, there is no duty to offer accommodation.
In litigation, employees sometimes claim they told a supervisor they had an emotional condition that required accommodation, yet the comment seemed so off-hand that the supervisor believed the subordinate was simply emoting in a casual way.
While this problem can occur with physical disabilities, it is even more likely to occur with emotional disabilities. From time to time, we all have said we feel anxious, depressed or stressed. By contrast, we don’t talk in the same way about feeling cancerish, diabetic or heart diseased.
Because employees who don’t have mental disabilities in the legal sense may on any given day feel and express symptoms that could be associated with a disability, these conversations pose legal risk for employers. To minimize this risk, employers should have a policy of encouraging employees to consult with HR, as opposed to their supervisors, if they have a (physical or) emotional disability for which they need accommodation.
If employees do not go to HR, then later claim the employer should have accommodated them as a result of conversations between the supervisor and the subordinate, the employer’s legal position is strengthened. As we have learned in the context of harassment, employees who ignore an employer’s credible complaint procedure do so at their legal peril. (For an example, see the case of Farragher v. Boca Raton, 524 U.S. 775 (1998).)
Moreover, a policy that directs employees to approach HR makes it less likely that employees will share deeply personal information of an emotional and/or medical nature with their supervisors. Legally speaking, the less a supervisor knows about an employee’s emotional and/or medical condition, the better. In general, supervisors tend to be less sensitive to confidentiality concerns and more likely to share information with others that they shouldn’t. Also, what supervisors don’t know can’t later be argued to have been the reason for any adverse employment decisions they make.
Of course, supervisors often consult with HR before taking adverse action. But the key is that the adverse action was initiated by the supervisor, who had no knowledge of the employee’s condition. Further, if HR is aware of a condition and believes it could be accommodated, it could disclose this information to the supervisor, to the extent that the supervisor has a need to know.
While employees are more likely to speak casually about their emotional feelings than their physical conditions, the reasonable accommodation policy should apply to and would have benefits with regard to physical as well as emotional conditions.
Of course, even if an employer has a policy that requires employees to check with HR—not their supervisor—if they need an accommodation, some employees will disclose information about emotional (and physical) conditions to their supervisors anyway. This is most likely to happen in the context of corrective counseling.
The law mandates that the employer and the employee engage in an interactive dialogue focusing on how the employer’s restrictions relate to the essential functions of the job. (For more information, see 29 C.F.R. §1630.9, Interpretive Guidance, and Beck v. University of Wisconsin Bd. of Regents, 75 F.3d 1130 7th Cir. 1996.)
The question is: “Who should engage in this dialogue?” Ordinarily, the answer is HR—not the supervisor. Most supervisors don’t have sufficient knowledge of the ADA to guide the interactive dialogue mandated by the courts.
Accordingly, it is recommended that employers have general guidelines that accompany their reasonable accommodation policies, which require supervisors to report to HR all voluntary disclosures by employees of emotional or physical conditions. This would include, but is not limited to, voluntary disclosures in response to discipline.
Of course, even if employees don’t disclose information about a disability, supervisors may be tempted to make inquiries. Assume, for example, an employee’s performance continues to decline. The employee also becomes increasingly sad and withdrawn. The supervisor asks the employee if she is depressed. The employee says a little and then changes the subject.
After the employee is let go for substandard performance, she consults with an attorney and discloses, among other things, her supervisor’s question about depression. The employee’s depression begins to lift when she learns that she might have a viable perceived disability claim under the ADA.
It is a sad but undeniable consequence of the ADA: When employers attempt to figure out the underlying cause of a workplace deficiency, employees may believe they are being perceived as disabled by their supervisors. And, under the ADA, when employees are perceived as being disabled, they can bring an ADA claim even if they are not disabled.
The lesson: You may be tempted to get to the underlying cause of an employee’s problem, but doing so runs the risk of an ADA claim.
From a risk management standpoint, focus on performance or behavior, not the underlying cause. If an employee’s moods change too frequently, say so—but don’t add that you believe he may be bi-polar.
Also, emphasize in training that supervisors should not focus on perceived emotional or physical contributors to workplace deficiencies. Supervisors should focus on what is happening, not why it is happening.
In the absence of specific training on this issue, supervisors may comment on or involve themselves inappropriately in an employee’s emotional (or physical) problems. When that occurs, a good law, the ADA, has bad consequences.
At the same time, the notion of watching an employee fall into the abyss of severe emotional illness without saying or doing anything is an anathema to most of us. The law aside, isn’t it in our enlightened self-interest amidst a labor shortage to help employees who are not in a position to help themselves?
In some respects, this is a false dilemma. Employers can help employees without getting inappropriately involved in their emotional (or physical) lives.
That’s where Employee Assistance Programs (EAPs) come in. EAPs can help employees get help for emotional (or physical) problems that cascade into the workplace. The question is how to get the employee to the EAP.
In referring an employee to the EAP, most supervisors (and human resource professionals) know they should not mention specific conditions. Employers invite ADA claims if they encourage employees to go to the EAP to deal with their depression, for example.
But it’s not enough for employers to avoid specific diagnoses. Employers should avoid using the term “counseling” altogether, since that or similar words may imply that the employer believes the employee has an emotional problem. For example, in the case of Holihan v. Lucky Stores, Inc. 87 F.3d 362 (9th Cir. 1996), the court ruled that an employee who was asked if he was having problems and was encouraged to seek counseling through the EAP may have been perceived as disabled by his employer.
We all know that EAPs help employees with emotional and other personal problems. However, when we refer the employee to the EAP, we should make the workplace problems our focus.
Don’t say: “We encourage you to go to the EAP. The EAP can help you with any personal problem you may have.” Say instead: “We encourage you to go to the EAP. The EAP may be able to help you solve your workplace problems.”
Of course, the EAP will focus on problems outside of the workplace. But the key is that it is the EAP—not the employer—that shifts the focus there.
Finally, even if supervisors focus on workplace deficiencies in disciplining employees (and in their referrals to the EAP), they still often make comments to one another about the difficult employees whom they supervise.
Take the employee who personalizes everything and believes everyone is out to get him. What’s more, he recalls conversations you are certain did not occur. You might believe the employee is paranoid, narcissistic and delusional.
And you might be right on all three counts.
But loose lips lose cases. Human resource professional and supervisory personnel need to avoid engaging in conversations that include diagnostic references that later could be used against the employer. (For an example, see the case of Farley v. Nationwide Mutual Insurance Co., 197 F.3d 1322 (11th Cir. 1999), where an employee’s supervisor created cartoons referring to the plaintiff as “just plain nuts.” The employee won a jury award.)
If an employee is acting crazy, say instead that he is acting inappropriately. This is particularly important when dealing with workplace violence. Focus on the violent or threatening behavior, not the perceived mental condition of the person engaging in the behavior.
Emotional disabilities are every bit as real as physical disabilities. Employees who have them should be neither stigmatized nor discriminated against.
To the contrary, through health insurance and EAPs, employers should make resources available to their employees with emotional conditions. Everyone wins when employers help employees help themselves.
Of course, not every employee with an emotional problem will be able to compartmentalize the problem so that it is separate from the workplace. Emotional problems often leak into the workplace.
When this occurs, a little knowledge can be a dangerous thing. Employers should no more try to fix depression than they would hepatitis.
Employers should respond to emotional problems in the workplace by reframing them in terms of their impact on functional abilities. What does this mean you can’t do in terms of your job? What is it that you need us to do?
Of course, that doesn’t get at the “real issue.” But, then again, the real issue isn’t our issue.
Author’s note: This article should not be construed as legal advice or as pertaining to specific factual situations.
Jonathan A. Segal, Esq., is a partner in the Employment Services Group of Wolf, Block, Schorr and Solis-Cohen LLP, a Philadelphia-based law firm. His practice concentrates on counseling clients, developing policies and strategic plans, and training managers to avoid litigation and unionization.
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