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

Zero Tolerance Drug Testing Policies in the Age of Medical Marijuana

Q:  My Company wants to institute a drug testing policy that would automatically disqualify an applicant for employment if they test positive for illegal drugs, including medically-prescribed marijuana. Is this legal?

A.  The law regarding the responsibility of employers to accommodate medical marijuana use continues to evolve as more states pass laws allowing for marijuana use for medical and recreational reasons. In Pennsylvania, for example, the law is silent as to whether an employer can rely upon a positive drug test as a reason to reject the applicant for employment. However, the statute lists specific areas in which employers may prohibit employees from working while under the influence of marijuana – operating or controlling government-controlled chemicals or high-voltage electricity, performing duties at heights or in confined spaces; and performing tasks that threaten the life of the employee or his/her coworkers.  By implication, outside these specified areas, employers may be required to accommodate marijuana use, so long as it does not occur at work.

In New York, the law goes even further, providing that certified patients shall not be subjected to “disciplinary action by a business” for exercising their rights to use medical marijuana. A patient with a prescription for medical marijuana in New York State is considered to have a “disability” under the New York State Human Rights Law.  This means that New York employers must provide reasonable accommodations to employees or prospective employees who are certified to use marijuana for medical reasons.

The Massachusetts Supreme Judicial Court recently ruled that employers may be held liable for disability discrimination under Massachusetts state law if they fire an individual for using medical marijuana. In that case, the employee was fired after her first day of work for failing a drug test, despite the fact that the employee had informed the company that her doctor has prescribed marijuana as a way to manage her Crohn’s disease.  The court held that using medical marijuana is as lawful as using any other prescription medicine, despite the fact that it is illegal under federal law.  Further, the court stated that it would be a reasonable accommodation for an employer to allow its employees to use medically-prescribed marijuana away from the employer’s place of business unless the employer can show undue hardship.

It is quite possible that the growing number of states that have enacted medical marijuana legislation will follow the lead of the New York legislature and the Massachusetts court in adding medical marijuana use – at least outside of the workplace – to the list of accommodations that are considered to be reasonable. That means that employers will not be able to rely on positive drug test results for marijuana for employees working in non-safety-related positions without engaging in the interactive process with the employee or applicant.  The employer will have to analyze whether the employee’s use of marijuana outside of working hours will prevent the employee from performing the essential functions of his or her job.  Moreover, the employer will want to monitor the employee to ensure that the accommodation does not impact the employee’s job performance.

– Tracey E. Diamond