Is inability to work a particular job because of stress a disability?

Employees frequently complain that they suffer stress symptoms from work. A supervisor makes an employee feel anxious. Dealing with customers all day gives another employee a headache. Working the night shift disrupts the digestive system. In such situations, it is not uncommon for the employee's doctor to write a "work restriction" that the employee not be placed in situations that cause stress. "Jack is not to have any contact with Supervisor X." "Jill must not be assigned to the night shift." "Brooke should not be given any assignments that cause stress." If the employer does not follow the doctor's instructions, and gets sued, one of the issues will be whether the employee has a disability that must be accommodated.

The Third District of the California Court of Appeal has ruled that an inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of job performance was not a disability. In Higgins-Williams v. Sutter Medical Foundation, Case No. C073677 (May 26, 2015), a clinical assistant told her doctor that she was stressed because of interactions at work with human resources and her manager. The doctor diagnosed adjustment disorder with anxiety, and stated that she could perform her job with no restrictions if she were transferred to a different department under a different manager. The Court of Appeal affirmed summary judgment for the employer on the employee's disability claims because she could not prove that she had a disability.

The Third District relied on Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, which reached a similar result in a disability case brought by an employee who claimed that she was stressed out by her supervisor. Reliance on Hobson is significant, because that decision had preceded the California Supreme Court's announcement that a disability under California law was a condition that limited a major life activity. See Colmenares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019. Before Colmenares, California courts had generally followed the federal substantially limits standard. Further, California had added a provision to the Fair Employment and Housing Act stating that working was a major life activity "regardless of whether the actual or perceived working limitation implicates a particular employment or a class or broad range of employments." Cal. Gov't Code section 12926.1. Higgins-Williams confirms the continuing validity of Hobson despite the changes in the law that have followed. For a recent unpublished decision that applies a similar approach, see Safari v. County of Los Angeles, Case No. B255142 (May 1, 2015).

For a case with some good language for employers under the federal standard see Dewitt v. Carsten, 941 F.Supp. 1232 (D. Ga. 1996):

Plaintiff, like anyone else, would like to hold a job as stress-free as possible. Traditionally, when an employee feels that a job is too stressful, she generally has three options: she first tries to obtain a reassignment with her employer; if that is not successful, she then either finds a less stressful job somewhere else or tries to stick it out with her current position. Plaintiff argues that the ADA provides a fourth option whereby she can insist that her employer transfer her to another position and can further dictate to her employer the one particular job that she will agree to hold, as well as the conditions under which she will perform that job.

Hopefully, in many work situations, the employer is willing and able to find another job more suited to an employee's needs and skills whenever that employee has a job that is causing her to feel stress. An employer, however, is not required to reassign an employee to a less stressful job, absent a legal requirement to do so. This Court agrees with the magistrate judge that plaintiff's particular stress is not a disability that legally mandates the employer to reassign plaintiff or offer her another accommodation.

Does stress from rush hour traffic require an accommodation?

That is the question posed by a disability discrimination complaint filed recently in New Jersey. Andrea DeGerolamo alleges that she suffered from "great anxiety and depression which was especially aggravated by crowded roadways experienced during the heavy traffic of rush hour." According to her complaint, her employer initially accommodated her by allowing her to come in after morning rush hour and to leave before evening rush hour.

The employer, Fulton Financial, removed the case from the state court where it was filed to the United States District Court in Camden. It is captioned DeGerolamo v. Fulton Financial Corp., Case No. 14-cv-03774-JHR-JS.

Accommodating Mental Disabilities

A recent case from New York provides fodder for a discussion of the scope of an employer's obligation to accommodate an employee's mental disability. A law firm fired one of its attorneys after learning that he attempted to have charges for adult movies and calls to escort services to the firm's clients. The attorney sued for discrimination and failure to accommodate his bipolar disorder. The New York Division of Human Rights awarded him $600,000, but the Appellate Division of the New York Supreme Court tossed out the award. Hazen v. Hill Betts & Nash, LLP, Case No. 104781/10 (N.Y. App. Div. Jan. 5, 2012). "[A] petitioner's disability does not shield him from the consequences of workplace misconduct."

Although the court's conclusion accurately described the circumstances of that case, employers must engage in a more nuanced analysis to avoid liability. For example, employees with mental disabilities that cause them to violate workplace attendance policies may nonetheless be entitled to an accommodation. See Humphrey 
v. Memorial Hospitals Association, 239 F.3d 1128 (9th Cir. 2001) (medical transcriptionist with obsessive-compulsive order that prevented her from getting to work on time might be entitled to work from home or to unpaid time off to bring her disability under control). The EEOC has opined that a schizophrenic warehouse worker who violates a company's conduct toward others and dress policies may be entitled to a pass. See
EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, No. 30, Example C.

An employer should use the following analysis to determine its responsibilities when dealing with an employee who has violated an employer's workplace conduct standards:

1.  Does the employer have information from which it could reasonably conclude that the employee has a disability? If an employer does not know that an employee has a disability, it cannot be accused of discrimination, and has no obligation to provide a reasonable accommodation. Further, an employer may not even inquire about a possible disability unless it has a reasonable belief, based on objective evidence, that: (1) an employee's ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.
2. Is the workplace conduct standard job-related for the position in question and consistent with business necessity? The EEOC's opinion that the warehouse worker referred to in its guidelines might be entitled to a pass on the conduct and dress policies was based on its conclusion that those policies were not job-related for a warehouse worker with no customer contact.
3. Is there a reasonable accommodation that would allow the employee to perform the essential functions of his or her job despite the disability? The EEOC Enforcement Guidance gives the following example: A reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and coworkers. After receiving a suspension as the second step in uniform, progressive discipline, she discloses her disability, states that it causes her behavior, and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard -- a rule prohibiting disruptive behavior towards patrons and coworkers -- that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future. See No. 31, Example A.

Earlier posts on the disability laws appeared on 7/10/2011, 6/12/2011, 1/14/2009, 9/14/2008, and 7/20/2008.

Disability Claims Can Cost Millions

A recent $20 million EEOC settlement with Verizon illustrates the hazards that the disability laws pose for employers. According to the complaint in EEOC v. Verizon Maryland, Inc., Case No. 11-CV-01832-JKB (D. Md. Jul. 5, 2011), Verizon had a "no fault" attendance policy, which assigned "chargeable absences" to any absence except for certified leave under the Family Medical Leave Act, jury or military duty, death in the immediate family, or excused time without pay. An employee who accumulated sufficient chargeable absences was subject to discipline, up to discharge. The policy did not excuse disabled employees who needed leave as a reasonable accommodation for their disabilities. As a result, according to the complaint, disabled employees were treated unfairly based on their disabilities.

In the consent decree that settled the case, Verizon agreed to pay $20 million to the affected employees, and to implement a new attendance policy, under which it would determine on a case-by-case basis whether an absence should be chargeable. If each of the following is satisfied the absence will not be chargeable: (a) the employee has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA; (b) the employee's absence was caused by a disability; (c) the employee requested a period of time off from work due to a disability; (d) the employee's absences have not been unreasonably unpredictable, repeated, frequent or chronic; (e) the employee's absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic; (f) Verizon was able to determine, from the request through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the employee would need because of a disability; and (g) the employee's need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon' s business.

The EEOC settlement came on top of a settlement with the California Department of Fair Employment and Housing based on allegations that its attendance policy led to violations of the California Family Rights Act. Under that settlement agreement, Verizon agreed to pay up to $6 million to California employees affected by the policy.

Claims under the disability laws have increased over the past several years. The EEOC reports the number of disability complaints ranged between 15,000 and 18,000 from 1997 to 2007, and then rose to 19,453 in 2008, 21,451 in 2009 and 25,165 in 2010. A study by the UCLA Law|Rand Center for Law & Public Policy reported that disability complaints rose 69 percent between 1997 and 2008.

Because the disability laws are complex and overlap with workers compensation and leave statutes, managers and human resource professionals should be sure they have a firm grasp of the applicable principles before taking adverse action of any kind against those with disabilities. Here are two rules of thumb:

1. Develop a detailed job description for every job classification in your organization, which explains the essential functions of the job and includes information about the physical requirements.
2. If an issue arises about an employees mental or physical ability to perform the essential functions of the job, obtain a written opinion from a qualified medical professional.

For further information about compliance, consult the EEOC website. If you need legal advice about how to comply with the disability laws, send us an email.

Disability Pitfalls for Employers

A recent decision from the California Court of Appeal in San Francisco demonstrates how hard employers must work to avoid liability under the disability discrimination laws. The Court ruled that the plaintiff employee was entitled to a trial on her disability claims because there was some evidence that the employer had not tried hard enough to accommodate her disability. Nadaf-Rahrov v. Neiman Marcus Group, Inc., Case No. A114016 (Cal. Ct. App. 9/10/2008).


Facts


Forough Nadaf-Rahrov was a clothes fitter for Neiman Marcus. She developed carpal tunnel syndrome in both hands and osteoarthritis in her fingers. Her doctor certified that she was unable to perform work of any kind, and she went out on Family and Medical Leave Act leave. After she exhausted her FMLA entitlement, Neiman Marcus extended her leave, and asked her to call when she was released to return to work. That would permit Neiman Marcus could look for alternative vacant positions in the San Francisco store where she worked.

On June 28, 2004, Nadaf-Rahrov's doctor wrote that she "may be able to return to work on 8/19/04 but not in her previous position." On July 14, 2004, Neiman Marcus terminated her employment. The human resources manager noted that Nadaf-Rahrov did not have a release from her doctor to perform work of any kind, and believed that the employee's condition was unlikely to change in the near future.


Analysis


The trial court granted summary judgment dismissing Nadaf-Rahrov's claims for (1) disability discrimination, (2) failure to accommodate and (3) failure to engage in an interactive process, but the Court of Appeal reversed.


1. The disability discrimination laws prohibit an employer from discharging a disabled employee who is able to perform the essential functions of her existing position, or of any vacant position for which she is qualified. There was a disputed issue of fact because the employee's doctor said his initial certification only meant that she could not do her existing job, and was not meant to foreclose all work. There was evidence of vacant positions that only required office work.


2. With respect to accommodation, the Court adopted the federal rule that Nadaf-Rahrov had the burden of proving that she could perform the essential functions of an available job with accommodation. It disagreed with a contrary rule adopted in Bagatti v. Department of Rehabilitation, 97 Cal. App. 4th 344 (2002).


3. The Court also adopted the federal rule on the interactive process claim, which requires the employee to prove that the employer did not interact in good faith and that a reasonable accommodation was available. There was evidence from which a jury could conclude that Neiman Marcus caused a breakdown in the interactive process by refusing to provide information about available positions that might have assisted Nadaf-Rahrov in preparing a list of her work-related medical restrictions.


What The Case Means For Employers

This case highlights the importance of care and precise documentation when dealing with disability issues. Employers should

1. Make sure that there is an up-to-date written job description for every position.

2. When an employee says that a physical or mental condition is making it difficult to perform his or her job, provide as much information as possible about vacant positions.

3. Insist on precise medical opinion about the employee's ability to perform the essential functions of vacant positions.

4. Rather than discharge an employee who has been out on medical leave for an extended period of time, let the employee remain in a leave status, and address the issue of whether there is a job available when a doctor certifies the employee's ability to return to work.

Injured, Sick and Disabled Workers

The tangle of laws governing treatment of injured, sick and disabled workers can make it difficult for an employer to make the right choice. If the employer makes the wrong choice, a lawsuit with its attendant costs and exposure to a jury verdict frequently follows.

The Costs of Being Wrong

A second grade teacher fell in her classroom, injuring her knees to the extent she required surgery. She subsequently developed fibromyalgia, a pain syndrome. When she was released to return to work 20 months later to a sedentary position, the school district required her to return as a second grade teacher (not sedentary), even though there were several available sedentary jobs for which she was qualified. A Los Angeles County jury awarded her $1,410,709. Reasonable accommodation includes putting a disabled employee into a vacant position if she is no longer able to perform her regular job. Cortes v. Montebello Unified Sch. Dist., Case No. BC359419 (L.A. Superior Court 5/27/2008).

An LAPD officer returned to work following a 4-year workers compensation leave, but then was told he would not be allowed to work any more because the Workers Compensation Appeals Board had adjudicated him 100 percent permanently disabled. A Los Angeles County jury awarded him $1,571,500. Employers must make every effort to allow their disabled employees to continue to work even if a workers compensation ruling appears to bar a return to work. Cuiellette v. City of Los Angeles, Case No. BC311647 (L.A. Superior Court 9/11/2007).

A city employee took FMLA leave to undergo bypass surgery. Although her cardiologist cleared her to return to work, her employer insisted that she see a city doctor for clearance. She refused to go and was fired. An Orange County jury awarded her $216,575. Employers must strictly follow the rules on medical certification. Cosby v. City of Orange, Case No. 07CC00242 (Orange County Superior Court 2/15/2008).

Applicable Laws

The federal Americans with Disabilities Act and the California Fair Employment and Housing Act prohibit discrimination against disabled employees who are able to perform the essential functions of their jobs with or without accommodation, and require employers to provide reasonable accommodation to disabled employees.

Other laws also provide protection for injured, sick and disabled employees -- the Family and Medical Leave Act, the California Family Rights Act, the pregnancy disability provisions of the Fair Employment and Housing Act and the Workers' Compensation Act.

Our Tips for Handling Injured and Disabled Workers provides an overview of the important principles for all these statutes. An employee's condition may require the employer to apply principles from all, some, one or none of the statutes discussed.

Employers must pay close attention to having an accurate and up-to-date job description for each employee, and to obtaining medical verification for physical and mental conditions that affect employment decisions. Job descriptions must describe the essential functions of each position. Obtaining medical verification will assure that the employer has the necessary information to confirm the effect of the employee's condition on performance of job duties. It will also support the employer's decision if the employee should challenge any adverse actions.

Other Resources

EEOC Disability Discrimination Page

DOL Family & Medical Leave Page

DFEH Publication on Disability Discrimination

DFEH Publication on California Family Rights Act

DFEH Publication on Pregnancy

Division of Workers' Compensation Employer Information