Anxiety and the ADA

Q: An employee in my company has requested intermittent leave as an accommodation for what he claims is a debilitating “anxiety,” but he has no job performance issues and seems fine to me. Are we required to provide a reasonable accommodation under the ADA for anxiety?

A: The question of whether an employee’s anxiety constitutes a disability under the Americans with Disabilities Act (“ADA”) is rather tricky for employers. Most people experience some level of anxiety on the job and in every day life, but in the absence of clear behavioral indicators, it may be difficult for employers to assess whether an employee’s anxiety rises to the level of a disability as defined by the ADA. However, as a recent decision from a federal court in the Middle District of Tennessee demonstrates, to enjoy the protections of the ADA, your employee’s accommodation request must be grounded on something more than his generalized claim that he has a “debilitating” anxiety disorder.

In EEOC v. West Meade Place LLP, the U.S. Equal Employment Opportunity Commission (“EEOC”) alleged that the defendant, a nursing home, failed to provide a reasonable accommodation to an employee who suffered from an anxiety disorder, and then fired her because of her disability.

The ADA prohibits discrimination on the basis of disability with respect to hiring, compensation, discharge, and other terms, conditions, and privileges of employment. In order to establish a prima facie case of discrimination under the ADA, a plaintiff must show that (1) she is disabled, (2) she is otherwise qualified to perform the essential functions of a position, with or without accommodation, and (3) she suffered an adverse employment action because of her disability.

In West Meade Place, the employer argued that the plaintiff could not establish the first element of the legal standard—that she was disabled. Under the ADA, a “disability” is defined in three ways: (1) a physical or mental impairment that substantially limits one’s ability one or more of the individual’s major life activities of an individual; (2) a record of such an impairment; or (3) being regarded as having such an impairment. Reviewing the evidence in light of this definition, the court found that the plaintiff was unable to satisfy her prima facie burden and granted summary judgment to the defendant.

First, the plaintiff could not show that her condition substantially limited her ability to perform her job. The EEOC’s plan to rely on testimony from the employee’s physician on this point backfired during the physician’s deposition. After stating on an FMLA form that the employee could not work during her anxiety “flare-ups,” the physician admitted that, in lieu of a medical opinion, she signed the FMLA form simply because the employee asked her to do it. Given the scant medical evidence to support plaintiff’s medical condition, the court rejected the agency’s argument that one or more of the employee’s major life activities were “substantially limited” by her anxiety.

In addition, the plaintiff’s contradictory testimony undermined the EEOC’s position that the employee had a record of impairment. On the forms she completed at the outset of her employment, she indicated that she had used an anti-anxiety medication and affirmed that she had issues with anxiety. However, she also wrote on the forms that she had never been treated for anxiety. As such, the court found the onboarding documents failed to establish that the plaintiff had a history of anxiety of such severity that it substantially limited on or more of her major life activities.

Likewise, the EEOC’s argument that the plaintiff was regarded as having an impairment by the employer failed. The court explained that, rather than simply alleging that the employer was aware of her symptoms, the plaintiff must instead show that the employer regarded her as “impaired” within the meaning of the ADA. An employee’s statement to management that she suffered from anxiety may not be enough. As the nurse manager explained when asked whether she was aware that the plaintiff had a disability, just because an employee “said she had anxiety, that doesn’t make it a disability. I have anxiety. It’s not a disability.”

Given that the plaintiff could not meet the ADA’s definition of “disabled,” she failed to establish a prima facie case of either on either her discrimination or failure-to-accommodate claims.

By nature, anxiety is somewhat difficult to assess, and thus employers must take care when responding to an employee’s request for an accommodation for an anxiety condition. In the absence of supporting evidence, an employee’s bald assertion that he or she suffers from an anxiety disorder probably is not enough to meet the ADA standard. Thus, an employer should carefully analyze any documents provided by the employee’s health care provider to determine whether the diagnosis indicates that the anxiety amounts to a “mental impairment” as contemplated by the statute. Also, employers should conduct a thorough review of the employee’s file to ascertain whether the employee identified the medical condition at the outset of employment or afterwards, thereby putting the employer on notice. In addition, employers should take a holistic view of the employee’s overall engagement with the company to determine whether the company regarded the employee as disabled. As always, to mitigate the risk of liability, employers should thoroughly review the facts and available documents with an attorney who has experience in analyzing ADA issues, prior to denying an employee’s request for an ADA accommodation.

Rogers Stevens

New Jersey Employers May Be Required to Accommodate an Employee’s Use of Medical Marijuana Outside the Workplace

Q.  Now that medical marijuana is legal in New Jersey, does the Law Against Discrimination require employers to provide an accommodation for medical marijuana use?

A.  While New Jersey employers are not required to accommodate the use of medical marijuana in the workplace, they may be required to accommodate an employee’s off-duty use of medical marijuana outside of the workplace, according to a recent decision. On March 27, 2019, the New Jersey Appellate Division reversed a lower court’s ruling that state law does not provide employment protections for medical marijuana users. Although the court affirmed that employers are not required to accommodate an employee’s use of medical marijuana in the workplace, the court found that failure to accommodate off-duty use of medical marijuana outside the workplace could give rise to liability under the New Jersey Law Against Discrimination (NJLAD).

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, a funeral director, alleged that he was discriminated against when the employer fired him for using medical marijuana, despite the fact that he had a prescription to use it to treat pain caused by cancer.  In 2016, the plaintiff was injured in a car accident while on the job, resulting in a trip to the emergency room.  At the hospital, he informed the treating staff that he had a license to use medical marijuana.  However, the physician in charge did not request a drug test based on an assessment that the plaintiff was not impaired at the time of the accident.

Despite the doctor’s assessment, the employer later requested that the plaintiff take a drug test, to which the plaintiff reluctantly agreed. After he failed the test, the plaintiff was terminated.  The employer first told the plaintiff that he was being terminated because the test revealed that he had drugs in his system.  However, the employer later sent a letter stating that the plaintiff was terminated not because of his use of medical marijuana, but rather because he failed to disclose his use of a medication which might affect his ability to safely perform his job duties, as required by the employer’s policy.

The plaintiff then filed suit, alleging that the employer violated the NJLAD by terminating his employment based on a positive drug test, given that he was prescribed medical marijuana by his doctor, as permitted by the New Jersey Compassionate Use of Medical Marijuana Act (CUMMA). In granting the employer’s motion to dismiss, the trial judge determined that CUMMA carries no employment-related protections for licensed users of medical marijuana.  The lower court explained that the termination was justified based on a positive drug test and a violation of the employer’s drug use policy.

Reversing the lower court’s decision, the Appellate Division first rejected the plaintiff’s argument that the disability discrimination protections under CUMMA and the NJLAD were in conflict, pointing to the language in CUMMA providing that “[n]othing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” As the court explained, “[t]hese words are unambiguous; they require no interpretation and permit no deviation.”  The court emphasized that CUMMA “neither created new employment rights nor destroyed existing employment rights” that may be available to employees under other statutes like the NJLAD.

Next, the Court noted that the plaintiff did not claim that the employer failed to accommodate his use of medical marijuana in the workplace, but rather, that the employer failed to accommodate his off-duty use of medical marijuana.  As the court explained, even if CUMMA does not obligate employers to provide a reasonable accommodation for medical marijuana use in the workplace, such an obligation may arise under the NJLAD.  Given that the plaintiff did not request an accommodation to use medical marijuana in the workplace, the Appellate Division concluded that his NJLAD claim should not have been dismissed.  The Appellate Division reversed and remanded the case for further proceedings on the question of whether an employee’s off-duty use of medical marijuana should have been accommodated under the facts presented.

The Appellate Division’s decision in Wild v. Carriage Funeral Holdings, Inc. indicates that, while CUMMA does not require employers to accommodate medical marijuana use in the workplace, the failure to accommodate a medical marijuana user, at least when the use is outside of the workplace and during non-work hours, could lead to liability under  the NJLAD.

At the very least, employers should exercise caution when taking an adverse employment action against an employee who has a prescription for medical marijuana following a positive test. Because drug tests can detect marijuana in a person’s body for some period of time after it is used, a positive test may reveal an employee’s use of marijuana during non-working hours.  This raises the possibility that, like in Wild, an employee who is not impaired at the time of a workplace accident could nevertheless test positive for marijuana use afterwards, based on use that occurred outside the workplace.  Given that the NJLAD may require an accommodation for an employee’s off-duty use of medical marijuana, employers should consult with legal counsel prior to disciplining or terminating an employee who tests positive for marijuana.

Rogers Stevens

In ADA Website Accessibility Cases, Remediation May Be a Successful Defense

Q.  What can I do to protect my company from lawsuits claiming that our website is not accessible to visually-impaired individuals?

A.  Companies, universities and other organizations around the country continue to face an onslaught of lawsuits brought under the Americans with Disabilities Act (ADA) alleging that commercial websites cannot be appropriately accessed by visually impaired individuals. A recent opinion from the U.S. District Court for the Southern District of New York provides a potential roadmap for companies to stave off litigation by taking action to remediate barriers to full website accessibility.

For full article, click here.

Jeffrey M. Goldman, Tracey E. Diamond, and Victoria D. Summerfield

Woof Woof: Accommodating Animals in the Workplace

Q.  An employee has requested that he be allowed to bring his Labradoodle to work with him. Do we have to accommodate this request?

A.  Pets are accompanying their masters everywhere these days. It is not unusual to see pets in public areas, including restaurants, and even on airplanes. Likewise, more employees are requesting to bring man’s best friend to work.  Whether an employer has to accommodate such a request depends on whether the employee is qualified individual with a disability and the request for accommodation would enable the employee to perform the essential functions of his or her job.  If the workplace is also a place of public accommodation, then the company also should be mindful of the rules under the  Americans With Disabilities Act (ADA) for “service animals.”

The ADA defines a service animal as a dog or miniature horse that is individually trained to do work or perform tasks for a person with a disability. Yes, you did read that correctly.  Miniature horses are covered by the Act, although other animals, such as cats, are not.  Examples of the type of work or tasks performed by service animals include:  (i) guiding a blind employee, (ii) alerting a deaf individual, (iii) pulling a wheelchair, (iv) alerting and protecting a person who is having a seizure, (v) alerting a diabetic that his or her blood sugar has reached certain high or low levels, (vi) reminding a person with mental illness to take prescribed medications, and (vii) calming an employee with a mental health disability during an anxiety attack.  The work or task the service animal has been trained to provide must be directly related to the person’s disability.

When it is not obvious what service a particular animal provides, a place of accommodation may only ask the following questions: (1) whether the animal is a service animal required because of a disability, and (2) what work or task the service animal has been trained to perform. The company may not require the individual to demonstrate that the service animal has been trained to perform a certain task.  Moreover, the ADA does not require that service animals be trained by a professional training program.  Instead, individuals with disabilities have the right to train the service animal themselves.  Likewise, the ADA does not require service animals to wear a vest, ID tag, or specific harness, or require that the animal has been certified, trained, or licensed as a service animal.

Animals in Private Workplaces

If your workplace is not a place of public accommodation, then the ADA does not have specific rules governing the type of animal allowed.  Employers will need to engage in the interactive process with the employee to determine whether allowing the animal into the workplace will enable the employee to perform the essential functions of his or her job without posing an undue hardship on the employer or a direct threat to health and safety in the workplace.  As part of the interactive process, the employer should ask the employee to provide medical documentation of the nature of the disability and way in which the animal would enable the employee to perform his or her job functions.  The employer can provide an alternative accommodation so long as the accommodation would be as effective in enabling the employee to perform the job.

Written Policies

Employers should consider putting a written policy in place, taking into consideration several practices, including, for example, the employee’s responsibility to keep the animal harnessed, leashed, or tethered, unless these devices interfere with the animal’s work or the individual’s disability prevents using these devices. In that case, the individual must maintain control of the animal through voice, signal, or other effective controls. In addition, a policy can clarify the employee’s responsibility to provide care and food for the animal.  Moreover, an individual with a disability can be asked to remove his animal from the workplace if: (a) the animal is out of control and the employee does not take effective action to control it, (b) the animal is not housebroken; (c) the facility cannot accommodate the animal’s type, size, or weight; or (4) the animal’s presence will compromise legitimate safety requirements necessary for safe operation of the facility.

Significantly, however, a coworker’s allergies or fear of dogs may not be valid reasons for prohibiting animals from the workplace. When a coworker who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility, or modifying work schedules.

–Tracey E. Diamond

 

Accommodations May Be Needed for Hearing-Impaired Job Applicants and Employees

Q: I understand that employers may be required to offer reasonable accommodations to hearing-impaired applicants and employees. When are accommodations required?  What kind of accommodations must employers offer?

A: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified individuals with disabilities who are employees or applicants for employment. In the context of a job application, an accommodation is considered to be reasonable if it enables an applicant with a disability to have an equal opportunity to apply for and be considered for a job.  In the context of employment, an accommodation is considered to be reasonable if it enables an employee to perform the essential functions of the position.

Employers should be aware of the importance of being alert to the need for potential accommodations, and following through on such accommodations in the case of hearing-impaired applicants and employees. In the application stage, employers may become aware that an applicant has a disability through voluntary disclosure, or because it is obvious, such as when the applicant uses a service to respond to telephone inquiries, or requests a sign language interpreter for an interview.  Upon obtaining such knowledge, employers should engage in the interactive process to inquire whether the applicant needs a reasonable accommodation for the application process.

It is important to separate the accommodations needed for the application process from those that may be needed to perform the job. Employers should not assume that the accommodation needed for the application process will be the same as the accommodation needed for the job.  Conversely, an individual may not need an accommodation for the application process, but may need one for the job itself.

Possible accommodations for hearing-impaired applicants during the application process may include a sign language interpreter and providing information in written rather than oral form. The same alteration of the way information is provided during the application process can constitute an accommodation for the job itself.  Other potential accommodations could include captioned or text telephones and voice recognition software.  Some accommodations may be needed only occasionally – for example, a deaf employee who can lip-read may be able to rely on lip-reading in his day-to-day communications, but may require a sign language interpreter for group meetings.

Employers are not required to provide a reasonable accommodation if the employee is not a qualified individual with a disability, if the employer and employee are not able to identify a reasonable accommodation that would enable the employee to perform the essential functions of the job, or if the accommodation would impose an undue hardship on the company.

The Equal Employment Opportunity Commission (EEOC) has recently focused its attention on alleged failures to accommodate hearing-impaired individuals, particularly during the employment application process. Whether the ability to hear is an essential function of a job (and thus, whether applicant or employee could perform the job with a reasonable accommodation) is a fact-specific inquiry.  For example, courts have held that the ability to hear audible alarms is an essential function under certain circumstances.  Courts have also held that strong verbal communication is an essential function of some jobs, and that an employee’s use of non-verbal modes of communication is not a reasonable accommodation of that function.

Employers should ensure that managers and human resources personnel are properly trained to identify situations where potential accommodations for deaf applicants or employees may be needed, and that such personnel understand how the accommodation process works.

Jessica Rothenberg