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Dec 22, 2015

By Eric B. Meyer

I train a heckuva lot of managers and HR professionals on leave issues relating to the Americans with Disabilities Act and the Family and Medical Leave Act. (Yes, you can have a copy of my presentation, just email me).

One issue that often crops up in discussing the intersection of the two laws is whether job-related stress or anxiety is covered under the ADA, FMLA, or both.

“Serious health condition” versus “disability”

The FMLA permits eligible employees to take job-protected leave for a serious health condition that makes the employee unable to perform the essential functions of his or her job.

A serious health condition can require an overnight stay in a hospital or could be something that incapacitates an employee for more than three straight days and have ongoing medical treatment. Stress and anxiety, if bad enough, could be a serious health condition.

The ADA protects a qualified employee or applicant with a disability who, with or without reasonable accommodation, can perform the essential functions of the job in question. Among other things, a disability is a physical or mental impairment that substantially limits one or more major life activities.

Can job-related stress be an ADA disability?

About two years ago, I blogged here on how an employee’s anxiety about possibly getting fired may be an ADA disability. That decision was from a South Dakota federal court. Yesterday, the Seventh U.S. Circuit Court of Appeals in Chicago tackled job-related stress as a disability in this opinion in Carothers v. Cook County.

Carothers filed suit, alleging that after Carothers’ June 2009 altercation with the juvenile detainee, she developed an anxiety disorder and that her discharge constituted discrimination on account of her disability.

Working as a major life activity

Ms. Carothers claimed that her anxiety interfered with the major life activity of working.

Working is a major life activity. But, demonstrating a substantial limitation in performing the unique aspects of a single specific job does not establish that a person is substantially limited in the major life activity of working, generally.

Rather, a plaintiff must show that her disability “significantly restricted her ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”

Here, Ms. Carothers only provided evidence demonstrating that her anxiety substantially limited her ability from interacting with juvenile detainees in her job as a corrections officer. It wasn’t until her appeal that Ms. Carothers argued that her anxiety also prevented her from interacting with any children.

But, by then, it was too late. She had waived the argument.

What if a disability substantially limits her ability to work?

Remember, the ADA only protects a qualified employee or applicant with a disability who, with or without reasonable accommodation, can perform the essential functions of the job in question. If an employee with a disability, such as job-related stress, cannot work with or without a reasonable accommodation, then, she is not a qualified individual.

What possible reasonable accommodations would allow an employee with job-related stress to perform the essential functions of the job? This may be a Catch-22 for the employee.

If the stress limits the employee’s ability to perform one job, then it’s not an ADA disability. However, if the stress limits the employee’s ability to work generally, then, there may be no reasonable accommodation available.

Still, there may be some solutions. I’ve addressed them before:

  • Re-distributing non-essential job functions to others;
  • EAP referral to help with stress management;
  • Modified work schedule to allow the employee to treat for stress;
  • Transfer to a less-stressful available position for which the employee is qualified;
  • FMLA, assuming the employee qualifies (Or maybe a brief period of leave under the ADA).

But, note that a transfer to a new supervisor is not a reasonable accommodation under the ADA.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.