The ADA and Employee Misconduct

Also via CCH Work Week, the EEOC issued an informal discussion letter on another hot topic--psychiatric disabilities with behavioral manifestations. The context for this inquiry is one that I would predict increasing numbers of employers may face. A veteran with post-traumatic stress disorder was behaving in a defensive and volatile manner and had difficulty getting along with coworkers. Psychiatric disabilities are a very tricky area, and a number of great articles have been written lately describing how poorly the ADA's approach sometimes works for these disabilities. 

PTSD may be a disability if it substantially interferes with the major life activities of thinking, concentrating, caring for oneself, interacting with others, or working, for example, and if the interference cannot be eliminated through medication or other therapy. In evaluating whether the condition substantially interferes, the duration of the impairment and how restricted the person is compared to an average person must be considered. So, hurdle one to figure out one's obligation toward an employee is determining whether the particular person's PTSD rises to the level of a disability under the ADA at all.

Hurdle two is particularly problematic from both the employer and employee perspective:

The ADA generally allows employers to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property, as well as requirements of timeliness and attendance. Similarly, employers may prohibit insubordination towards supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers. Although an employer must provide reasonable accommodations to enable an employee to perform a job or to enjoy equal benefits and privileges of employment, reasonable accommodation does not include excusing a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity even if an employee’s disability causes him to violate the rule.

An employer, however, must provide a reasonable accommodation to enable an employee with a disability to meet a conduct standard in the future, absent undue hardship (i.e., significant difficulty or expense), assuming that the punishment for the initial violation is not termination and the employee has requested an accommodation. For example, if the employee at issue has a disability that causes him to lose his temper and violate a uniformly applied rule requiring courtesy toward coworkers, the employer may discipline him for violating the rule. However, assuming the discipline is not termination and the employee then requests time off to seek treatment, the employer must grant his request for a leave of absence, or some other effective accommodation, absent undue hardship, to enable him to meet the conduct standard in the future. If, on the other hand, the employee merely states that his PTSD is the cause of his volatility and inability to get along with coworkers but does not ask for a reasonable accommodation, the employer may, but is not required to, ask if the employee thinks that there is an accommodation that might help him avoid future misconduct.

This would seem to give employers an incentive to punish employees for this kind of conduct by discharging them, which seems a bit odd. But I suppose that may not be problematic as a practical matter if the employer has to treat everyone who engages in similar kinds of conduct the same way. In other words, if an employer only fires the disruptive employee who has PTSD and not the disruptive employee without that diagnosis, the fired employee would probably have a disparate treatment claim, perhaps arguing that the only logical reason for the different treatment was that the employer regarded the person as disabled by assuming the employee would not be able to control continued disruptive conduct.

The EEOC also offered this advice: 

Finally, when the disability or need for accommodation is not obvious, the employer may obtain reasonable medical documentation to determine if the employee’s condition meets the ADA’s definition of disability, whether and to what extent the disability is affecting the employee’s misconduct, and what accommodations, if any, may be needed.  For example, some individuals with PTSD may need longer or more frequent work breaks to cope with stress or permission to call a therapist or counselor from time to time, even though the employer generally has a policy prohibiting personal phone calls. Others may need to telework, if the job can be done from home, on days when symptoms are particularly acute. If a reasonable accommodation is needed to assist the employee in controlling his behavior to prevent another conduct violation, and the employer refuses to provide one that would not cause undue hardship, the employer will violate the ADA.

For more discussion of a timely and difficult topic, you may want to see the EEOC's recent publication, Veterans with Service-Connected Disabilities and the ADA:  A Guide for Employers

MM