The toxic brew of increasingly long hours and high stress should be prompting more conversations in the workplace about mental illness. A 2016 study by the American Bar Association found that, within our own profession, 28 percent of lawyers struggle with depression. Sadly, it is the recent high profile suicides of public figures, including Kate Spade and Anthony Bourdain, which have catapulted this topic to a more prominent position in discussions of employee wellness and corporate culture.
Tragically, as in those cases, a person suffering from depression sometimes will fail to share his/her problems with others. In other cases, however, people suffering from depression do seek help. And in a subset of those cases, they will tell their employer in order to receive a reasonable accommodation under the Americans with Disabilities Act (ADA). Employers, therefore, must be educated on this topic and prepared to appropriately accommodate their employees suffering from depression in order to meet their obligations under the ADA.
In this month’s column, we examine the federal law governing how employers must address such accommodation requests, and offer some suggestions as to how employers might approach such situations.
In 1990, Congress passed the Americans with Disabilities Act (ADA) to outlaw employment discrimination against individuals with disabilities. 42 U.S.C. §12112(a). Later, Congress expanded the ADA with the ADA Amendments Act of 2008 (ADAAA), which broadened the ADA’s scope and reinforced Congress’s “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Id. §12101(b)(1).
The failure to provide a reasonable accommodation to a disabled, but otherwise qualified, person in the workplace is one of the forms of unlawful employment discrimination encompassed by the ADA. Id. §12112(b)(5)(A). In order to establish a claim for failure to reasonably accommodate, a plaintiff must show: (1) she is disabled under the ADA; (2) she could perform the essential functions of the job with or without a reasonable accommodation (i.e., she was “otherwise qualified”); and (3) the employer, despite knowing of her disability, did not reasonably accommodate it. Id.
The Equal Employment Opportunity Commission has stated that the passage of the ADAAA shifted the focus of the disability discrimination inquiry from whether the employee has a “disability” within the meaning of the statute, to whether the employer lived up to its obligation to reasonably accommodate her. See 29 C.F.R. §1630.2(j)(1)(i)-(iii). Indeed, the definition of “disability” is “construed broadly in favor of expansive coverage … .” Id. §1630.1(c)(4). Consequently, following the passage of the ADAAA, many courts have concluded, even on limited records, that depression can constitute a disability. See, e.g., Rubano v. Farrell Area Sch. Dist., 991 F. Supp. 2d 678, 692 (W.D. Pa. 2014).
Is the ability to work full time an essential function of an employee’s job? In Hostettler v. Coll. of Wooster, 895 F.3d 844 (6th Cir. 2018), the Sixth Circuit held that this was not a legal issue, but rather a question of fact for a jury. Plaintiff Heidi Hostettler was an HR Generalist for the College of Wooster who experienced severe postpartum depression and separation anxiety following her pregnancy. In addition to 12 weeks of FMLA leave, her supervisor granted her three extra weeks of leave and, per the recommendation of Hostettler’s doctor, thereafter allowed her to return on a part-time basis of five half-time days per week.
During this time, Hostettler claimed she could perform the essential functions of her position with a modified work schedule by handling issues that arose after her stop-time either from home or the next morning at work. She received a positive evaluation during this period from her supervisor, and a colleague testified that Hostettler was effective on a modified work schedule. Still, Wooster presented evidence that Hostettler did not perform critical functions of her job, such as filling job openings or leading trainings and lunch programs, which inevitably put a strain on the HR department.
When Hostettler’s part-time accommodation was set to expire, her doctor submitted a medical certification explaining that she should continue working half-time for three more months. Wooster disagreed, and, a month after her accommodation expired, fired her for being “unable to return to [her] assigned position of HR Generalist in a full time capacity.” Id. at 851. Hostettler subsequently filed suit, arguing that Wooster violated the ADA. The district court granted Wooster’s motion for summary judgment, holding that full-time work was an essential function of Hostettler’s job, and therefore she was unable to state a claim because she was not “otherwise qualified” under the ADA.
Hostettler appealed, and the Sixth Circuit reversed. The court first noted that essential functions are those that would fundamentally alter a job if eliminated. It observed that, in determining whether something is an essential function, courts should consider the amount of time spent on that function, the employer’s judgment, written job descriptions prepared before the job was posted, and the consequences to the employer of the employee not performing the function. The court also said that “[r]egular, in-person attendance is an essential function’ of most jobs.” Id. at 854 (alteration in original) (quoting EEOC v. Ford Motor Co., 782 F.3d 753, 762–63 (6th Cir. 2015)).
Nevertheless, the court held that whether full-time work was an essential function of Hostettler’s job was a question of fact for the jury. The court explained, “[o]n its own … full-time presence at work is not an essential function. An employer must tie time-and-presence requirements to some other job requirement.” Id. at 856. Hostettler presented evidence that she could perform her other job requirements without working full-time. Accordingly, Wooster could not prove as a matter of law that full-time work was an essential job requirement, and the district court’s grant of summary judgment was improper.
Still, another court rejected a failure to accommodate claim on different facts. In Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119 (1st Cir. 2017), plaintiff Taymari Delgado Echevarría (Delgado) was a Hospital Specialist for AstraZeneca diagnosed with severe depression and extreme anxiety. She requested paid leave under the company’s short-term disability policy, which was initially granted for a month.
AstraZeneca then periodically granted extensions for Delgado’s leave based on treatment records submitted by her doctor. After AstraZeneca had extended her leave for five months, it sent Delgado a letter stating that, if she did not return to work, it would presume she resigned. In response, her doctor faxed a form requesting another year of leave. AstraZeneca determined that the form did not support reinstating Delgado’s leave, and told Delgado to return to work. Two months later, and without any word from Delgado, AstraZeneca terminated her employment.
Thereafter, Delgado filed suit against AstraZeneca alleging that AstraZeneca violated the ADA by failing to grant the additional year of leave. AstraZeneca then moved for summary judgment, which the district court granted. On appeal, the First Circuit began by observing that, to be “otherwise qualified” under the ADA, Delgado would have to show that her proposed accommodation would both enable her to perform the essential functions of her job and be feasible for AstraZeneca.
On the first score, the court highlighted that Delgado failed to effectively communicate to AstraZeneca the reasons why an additional year of leave would have enabled her to return to work and perform the essential functions of her job. Delgado never submitted any supporting medical documentation beyond a form from her doctor requesting more leave that would have shown AstraZeneca why additional leave was necessary and how it would have been effective. Next, the court dealt with the “even larger flaw in Delgado’s case,” that “the sheer length of the delay, when coupled with her prior five-month leave … jump[ed] off the page.” Id. at 130. Noting the burdens of such an extended leave on AstraZeneca, including “somehow covering the absent employee’s job responsibilities during the employee’s extended leave,” the court held that extending her leave another year would have been facially unreasonable. Id. at 131. Consequently, the court affirmed the district court’s grant of summary judgment.
Depressed employees often seek flexible work arrangements or time off. Hostettler shows that employers cannot claim that full-time presence at work is an essential function unless they tie time-and-presence requirements to other job requirements. However, Echevarria instructs that employees can only ask for facially reasonable accommodations and must provide evidence showing how such accommodations would enable them to perform the other essential functions of their jobs. Notwithstanding these general observations, employers should consider the following measures to increase the likelihood that courts will condone their actions.
Job Descriptions. Where appropriate and justified, employers should include regular attendance as an essential job function in written job descriptions, and explain why it is essential (for example, because employees work as part of a team, meet with customers, or use on-site equipment). Indeed, the Hostettler court favorably referenced employers that had done so in two other cases. In the first, a company’s call center tied full-time work requirements to a business need because, without a strict attendance policy, customers had to wait longer and other employees became overwhelmed fielding calls. Williams v. AT&T Mobility Servs., 847 F.3d 384, 387-88, 392 (6th Cir. 2017). In the second, the company specifically identified some of the plaintiff’s main job responsibilities that she could not perform from home. E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 759 (6th Cir. 2015).
Telecommuting. Employers should be aware that if they allow “flextime” and telecommuting options for employees, employees may seek to use those employment arrangements as grounds to argue that on-site attendance is not an essential function of the job. This was the case in Hostettler, as the plaintiff was able to show full-time work was not essential by proving she could capably perform her other job responsibilities on a half-time schedule. See also Breen v. Department of Transportation, 282 F.3d 839 (D.C. Cir. 2002).
Be Proactive. Under the ADA, employers must provide qualified employees with reasonable accommodations, but not all accommodation requests are necessarily reasonable. Therefore, employers often must engage in the interactive process to determine the appropriate accommodation. See 29 C.F.R. §1630.2(o)(3). In order to avoid liability for failure to engage in the interactive process, employers should proactively discuss accommodation requests with employees, suggest alternatives, and document their efforts. A court will look more favorably upon the employer that does so than the employer that rejects the employee’s proposals outright.
Other Laws. This article focuses on federal disability law, but employers should consider additional state and local disability laws, sick leave laws, and family medical leave laws. For example, many state and local disability laws do not track the ADA’s requirement that an individual be “qualified” in order to make out a successful discrimination claim.
Jeffrey S. Klein and Nicholas J. Pappas are partners in the Employment Litigation Practice group at Weil, Gotshal & Manges. Dan Richards, an associate at the firm (not yet admitted to practice), assisted in the preparation of this article.