Introduction. Currently in this country, one of the most fertile areas for litigation involving employers is the area defined by the intersection of employee psychological injuries and the employer's duty of reasonable accommodation. The whole area of reasonable accommodation law is rather "messy" to begin with, and when reasonable accommodation principles are applied to matters involving employee psychological or non-physical injuries, i.e., emotional or psychological injuries or conditions which traditionally "get no respect" from most of society, the potential legal morass is both wide and deep. How can an employer avoid falling into this legal morass? This article will provide some answers to that question.

     Assumptions. Although not every, or perhaps even most, psychological injuries are disabilities within the meaning of the ADA (because many psychological injuries do not substantially limit one or more major life activities of the injured persons), it is usually safer for an employer simply to assume that a psychological injury is a disability and to address whether a reasonable accommodation may be made for the employee. Thus, this paper will generally assume for the purposes of its discussion of various matters that an employee's psychological injury is a disability within the meaning of the ADA, and that therefore the only issue is what, if anything, the employer is required to do to reasonably accommodate the employee. This, then, is the first rule to avoiding falling into the legal morass described above: Usually, an employer confronted with an employee who claims to be disabled should assume that the employee is disabled (i.e., accept the employee's claim of disability) and try to figure out what reasonable accommodations can be made to the employee's disability.

     The Duty of Reasonable Accommodation. The ADA places on an employer the duty to make reasonable accommodations to the known physical or mental limitations of a disabled employee unless the employer can prove that the accommodations would impose an undue hardship on the operation of the business of the employer. The ADA defines the term reasonable accommodation very broadly:

"The term 'reasonable accommodation' may include (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials, or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. §12111(9).

     Because the duty of reasonable accommodation is so broadly defined, it is usually safer for an employer to do as much as it can to accommodate the employee's disability. Unfortunately, "doing as much as you can" may not quite be enough to avoid some ADA problems, so the second rule for avoiding ADA problems is this: Do as much as you can to accommodate a disabled employee, and then do a little bit more (i.e., go the extra mile).

     The third rule for avoiding ADA problems arises out of the requirement contained in the EEOC's ADA regulations that an employer should initiate an interactive discussion with the employee about possible reasonable accommodations. The EEOC's regulations both allow and encourage an employer to discuss possible reasonable accommodations with a disabled employee. Contrary to what many employers believe, an employer is not prohibited from discussing these types of matters with an employee. The EEOC's regulation states:

"To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations." 29 CFR §1630.2(o)(3).

     An employer may avoid claims under this regulation by asking an employee, more than once if necessary, "What other reasonable accommodations do you suggest, and how would you see those working out?" Thus, the third rule for avoiding ADA problems is this: Talk with the disabled employee about what accommodations the employee proposes, what accommodations you propose, and what accommodations you implement, and document those conversations.

     Actual Cases. A review of statutory language and of my general rules is only the start of an understanding of the application of reasonable accommodation principles to employee psychological injuries. A review of actual reported litigated cases is necessary for a fuller understanding of this area of the law. In general, the cases fall into two categories: cases in which claims of failure to reasonably accommodate a psychological disability were sustained (i.e., cases for claimants), and cases in which such claims were rejected (cases for employers). Employers can learn valuable lessons from both types of cases.

     Cases for Claimants.

     1. Gile v. United Airlines, Inc., 5 AD Cases 1466, 95 F.3d 492 (7th Cir. 1996)
A. Claimed Disability: as a result of problems working on the night shift, the employee developed "depressive reaction in anxiety state exacerbated with sleep disorder" which made her unable to work on the night shift
B. Desired Reasonable Accommodation: transfer to a position on the day shift or the afternoon shift
C. Employer's Actions: gave the employee a medical exam and then placed the employee on an "unpaid authorized leave" for a year and a half before finally assigning the employee to an afternoon shift job of the same type the employee previously had; the employer claimed it had no suitable vacant positions for the employee during the year and a half
D. Result: The Court allowed the employee to proceed with her claim that the employer had failed to reasonably accommodate her by assigning her to another available position during the year and a half. The Court noted that "reasonable accommodation may require reassignment to a position wholly distinct and different from the one the disabled employee previously held" and that "reasonable accommodation may also include reassignment outside of the particular department, office, or facility in which the employee previously worked."
E. Comment: An employer's possible option of transferring a disabled employee to a vacant job position for which the employee is qualified must always be seriously considered and may not be rejected on the basis of any arbitrary rules such as "it's not the same job" or "it's not in the same department."

     2. Wood v. County of Alameda, 5 AD Cases 173 (N.D. Cal. 1995)
A. Claimed Disability: after an intense verbal altercation with a co-worker: "adjustment disorder with anxiety and depression"; "Post Traumatic Stress Disorder"; "Anxiety and Depressive Disorders"
B. Desired Reasonable Accommodation: reassignment to a vacant position (away from the co-worker with whom employee had the argument and away from the employee's supervisor)
C. Employer's Actions: allowed employee to apply for 35 vacant positions but filled all 35 vacant positions with other "more qualified" persons; gave employee vocational counseling for jobs with other employers; encouraged employee to quit; offered employee another job in same department
D. Result: The evidence showed the employer had a past practice of reassigning non- disabled employees to vacant positions for various reasons, and that there was no good reason why the claimant had not been similarly reassigned; the Court made a preliminary finding of disability discrimination and entered a preliminary injunction against the employer.
E. Comment: "Reassignment to a vacant position" is specifically stated in the ADA itself to be an example of a reasonable accommodation, and it is, in fact, one of the most common types of reasonable accommodations normally implemented by employers; this employer simply had no excuse at all for denying all 35 vacant positions to the claimant.

     3. Barton v. Tampa Electric Co., 6 AD Cases 1178 (M.D. Fla. 1997)
A. Claimed Disability: "adjustment disorder with depressive features"; "depression"; "Major Affective Disorder"; "Bipolar Disorder or a possible Schioaffective Disorder"
B. Desired Reasonable Accommodations: allowed breaks to take medication, more frequent restroom breaks, a "more supportive environment," allowed to work "slower than normal" due to medication, transfer to different branch (to get a new supervisor)
C. Employer's Actions: accused employee of faking disability; suggested she see a new doctor; sent her to company doctor; finally placed her on disability leave
D. Result: The Court felt that the evidence tended to show that the employer had made "a concentrated effort to disregard [the employee's] doctors and cause her additional stresses beyond normal job stresses"; claimant allowed to proceed to a jury trial on her disability discrimination claim and a claim for intentional infliction of emotional distress.
E. Comment : "Wandering" or multiple diagnoses are common in these types of psychological disability cases; they can be difficult to deal with, but an employer must get over natural suspicions about such diagnoses and move forward with a proper reasonable accommodation effort; if a disabled employee's immediate superior is hostile to the employee, the employer must take appropriate steps to control or correct the superior's behavior or change the employee's supervision situation.

Cases for Employers.

     1. EEOC v. Amego , Inc., 6 AD Cases 997, 110 F.3d 135 (1st Cir. 1997)
A. Claimed Disability : "bulimia and major depression" with history of two recent medication overdose suicide attempts
B. Desired Reasonable Accommodation: transfer the employee to a position that did not require the handling of prescribed medications, or rearrange the employee's patient assignments to remove patients requiring prescribed medications, or rearrange other employees' assignments so they could better supervise the employee's access to medications
C. Employer's Actions : discharged the employee for inability to safely perform her job, which included controlling and dispensing prescription medications she had recently abused
D. Result: Disability discrimination claim rejected; none of the employee's proposed accommodations were in fact reasonable or workable; all would have required a major alteration of the employer's operations, if they could be implemented at all
E. Comment: What the employee really sought to do through her proposed reasonable accommodations was simply redefine her job to remove from it one of its essential functions (i.e., the safe control and distribution of prescribed medications), and the Court rejected this attempt, saying that "Such redefinition [of a job] exceeds reasonable accommodation."

     2. Soileau v. Guilford of Maine, Inc., 6 AD Cases 437, 105 F.3d 12 (1st Cir. 1997)
A. Claimed Disability: "dysthymia" (chronic depression) which substantially impaired the employee's "ability to get along with others"
B. Desired Reasonable Accommodations: the employee asked to be relieved of his normal job duty of conducting certain employee meetings and be allowed to avoid "significant interaction with other employees"
C. Employer's Actions: the employer relieved the employee of his duty of conducting certain employee meetings but then discharged the employee for documented poor performance
D. Result: disability discrimination claim rejected; the employee's documented poor performance, which started before and continued after the alleged disability issues first arose, justified his discharge

     3. Jacques v. Clean-Up Group, Inc., 5 AD Cases 1594, 96 F.3d 506 (1st Cir. 1996)
A. Claimed Disability: epilepsy, which prevents the employee from driving a car
B. Desired Reasonable Accommodation: employer-provided transportation to and from work, or allow the employee to start an 8:00 a.m. job at 10:30 a.m. (so the employee could use public transportation to get to work)
C. Employer's Actions: rejected the employee's requests and hired another person to do the 8:00 a.m. job
D. Result: disability discrimination claims rejected; the 8:00 a.m. start time was an essential function of the employee's job, which the employer was not required to change, and the provision of transportation to and from work would have caused an undue hardship on the employer (which was a small employer with no resources to provide such transportation)

4. Grenier v. Cyanamid Plastics, Inc., 5 AD Cases 75, 70 F.3d 667 (1st Cir. 1995)
A. Claimed Disability: various "psychological problems" ("too emotional," "irrational," "paranoid," "obsessed")
B. Desired Reasonable Accommodation: to be returned to work after two years of disability leave without supplying a medical certification of fitness for duty or any specification of any limitations on work abilities
C. Employer's Actions: rejected the re-employment application
D. Result: disability discrimination claim rejected; an employer has a right to request that an applicant with a known disability, which apparently impairs the applicant from performing the essential functions of a requested job, supply a fitness for work certification or specific information about the applicant's work abilities, limitations, and requested accommodations

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Dated: February, 2000