Overstressed employee's panic attacks a real headache for Acme

Acme discovers something about the definition of overstressed.

After 20 years on the job, Dinah Meaux, a successful Acme sales professional, began to have inexplicable panic attacks. For two years, she controlled them using Yogic principles. When Dinah heard rumors of a 9% force reduction in every level and department, she suffered a severe panic attack right in her cubicle. Neighboring employees who witnessed it called HR to get help for the poor lady.

Chester Drores, the HR manager, calmed Dinah and arranged for her to meet with a psychiatrist, who diagnosed a panic disorder. The prescription was four months of sick leave.

During her absence, Dinah gained better control over her panic condition, but began suffering from depression and anxiety. Three months into the leave, the psychiatrist reexamined her and sent her back to work, but she wasn’t allowed to confront any stress arising from work she hadn’t mastered earlier.
She returned to Acme, but a departmental restructuring instituted while she was gone gave her job unexpected novel elements. No longer working exclusively on commission-based sales, Dinah had to help with the customer telephone hotline. Fielding the calls sometimes required technical expertise that sales professionals never acquire. She had to learn the intricacies of a help desk computer program that had no relevance to sales. She had to be a member of a work team instead of a solo sales act. Half her pay was tied to the rather subjective assessments endemic to performance reviews.

Within six months, the familiar nervous sensations started building in her bosom and coalesced into periodic crescendos of full-blown panic attacks. Her coworkers already knew the drill and responded appropriately. The good doctor dispatched Dinah on a second three-week sick leave.

Upon returning, Dinah found that much of the dreaded novelty surrounding the job had dissolved, primarily because there weren’t any new surprises. Knowing what to expect allowed her to focus on the job. She kept her emotions on a reasonably even keel, closed many sales, worked the hotline and generally did what was expected of someone in her situation.

The only upcoming tension-builder was her performance review scheduled one month hence. Dinah maintained her cool in the interim and got through the event. Her immediate supervisor and fellow team members had given her a pretty respectable review, an outcome that would in large measure determine her eligibility for a pay raise.

However, the upper-level supervisor who applied the final binding numerical scores to performance reviews had downgraded Dinah’s score quite a bit. When the confirming review paperwork arrived in an interoffice envelope, Dinah was shocked to see that she’d gotten the lowest rating she’d ever received. She didn’t understand why. She had a track record of sales accolades and earned a significant cash sales award recently.

Hyperventilating and perspiring profusely, Dinah’s mind raced in tiny, dull interlocking circles as she fetched her dusty copy of the employee manual, which indicated she had the right to appeal the rating. Despite her fevered rebuttal preparation, Dinah’s attempt at oral persuasion was unsuccessful. The more excited she got, the more tongue-tied she became. Afterward, her certitude about being fired soon initiated another panic attack and a one-week sick leave.

Upon her return, Dinah was transferred again. Her job now required new skills, but, this time, Acme assigned another employee to serve as a mentor, guru and trainer for three months to help her get up to speed. Before the training period ended, Penny Weiss, her new supervisor, threatened to fire her if she didn’t start bringing in some new business immediately. This conversation led to a one-month sick leave.

A few days after her return, someone discovered a package of company-confidential documents with a letter addressed to a well-known investigative news reporter, all of which could be proven conclusively to have come from Dinah’s computer. Dinah denied any knowledge of the material and claimed someone used her cubicle while she was out.

Chester offered Dinah a choice. She either could accept a separation package today or she would be the subject of an investigation. She refused the separation package and, a week later, spent half a day with the investigator. Afterward, Dinah went home. She said Chester sent her home to await the outcome of the investigation. Chester said she simply walked out.

Whatever the reason for her departure, the good doctor again put her on sick leave, from which she never returned. It was during this time that Dinah sued for discrimination because Acme didn’t accommodate her disability and for fostering an intimidating, abusive, offensive and hostile work environment.

How could this situation have been avoided? Would Acme have been better off eschewing involvement in humanitarian efforts and cutting its losses at the beginning? How should a company respond at the first sign of an employee’s seemingly irrational behavior? What, if any, are the appropriate limits of corporate tolerance? How could the Acme supervisors have better responded to the situation?

An attorney says
Acme might not have done so badly in this situation. Assuming that Dinah's panic attacks/depression/anxiety are covered disabilities under the Americans With Disabilities Act (ADA), Acme had an obligation to accommodate her. However, it appears that Acme did so <em dash>--<em dash> in fact, repeatedly.

The ADA normally requires an employer to reasonably accommodate a disabled employee unless it poses an undue hardship to the employer. But unless the need for an accommodation is obvious, the employee is expected to inform the employer that she requires an accommodation. In this case, Dinah told Acme on four occasions that she needed an accommodation in the form of a leave of absence. In each case, Acme granted her the leave. There’s no evidence that Dinah requested any other form of accommodation and as a result, Acme wasn’t required to do anything other than what it did.

As to the changes in duties and jobs that Dinah experienced, once her initial leave was over, Acme had no obligation to reinstate her in her former or an equivalent position. The obligation under the Family and Medical Leave Act (FMLA) to return an employee to her former position or an equivalent one is limited to 12 weeks of leave per year. Dinah far exceeded that limit, and Acme was free to assign her to different positions.

Acme would have made a serious error had it decided to cut its losses at the beginning. Because it had obligations to Dinah to grant her a leave under both the FMLA and the ADA, booting her out the door at the first sign of a panic attack would have been legally unwise.

Some of the other acts that will, no doubt, surface in the course of Dinah's lawsuit, such as the critical performance review and the threat to fire he if she didn't start bringing in some new business, are perfectly legitimate demands that an employer may place on an employee. Acme wasn’t required to reduce its standards for bringing in new business or for sales performance simply because Dinah suffered from panic attacks.

Mental disabilities under the ADA have posed many difficult scenarios for the courts, which have universally recognized that an employer isn’t required to go to any length to accommodate an employee with a mental disability. Acme met its legal obligations toward Dinah. Her energies might be better spent on procuring better psychiatric treatment or a different line of work that is less stressful.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

A corporate consultant says:
It seems there are two separate phases to this case. For Phase One, the four separate panic attacks, I think Acme responded admirably. As a business owner, I wouldn’t have been nearly so generous; I would have found a way to legally terminate Dinah after the first attack. At best, her behavior erodes productivity for all parties affected by the incidents. At worst, the behavior puts the business and other employees at risk. The belief that business owners have to take the financial and productivity hit of absent employees, and be forced to ensure the job is perpetually available for the habitually absent employee, is, in my view, preposterous. Businesses are not and cannot be expected to function as charities.

Phase Two of this case is the effect of her absenteeism on her performance review. Is the expectation that chronically absent employees not only have the assurance of a job for life, but regardless of the number of days missed, they're also entitled to a great performance review? Am I the only one who thinks there's something wrong with this?

Although the facts regarding Dinah's departure from the workplace are debatable, it seems irrelevant. Chester offered her a choice between severance and an investigation, which, given her condition, seems reasonable. Chester was likely duty-bound to conduct an investigation because the documents were confidential, and what he offered her was a choice between two major stressors: the investigation or the package. It was Dinah's choice not to come back, and her suit against Acme for not accommodating her disability seems to me outrageous.

In my view, Acme did better than tolerate her attacks. The fact that they continued to keep her on, and continually provided her with the necessary training to ensure she could perform consistent with their evolving needs, (even to the extent of assigning another employee as her personal mentor), is way more than Acme should have been expected to endure.

In my opinion, the only way Acme could have responded better would have been to cut their losses earlier.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:
The case raises two interesting questions. The first concerns a company’s legal obligations with respect to a disabled employee. The second question concerns a company’s moral obligations to its employees. The first is answered by federal (such as ADA) and state legislation.

The second question covers a variety of company practices in addition to that of disabled employees. Consider, for example, what obligation a company owes to a terminated employee when it downsizes. Should the company just let the employee go and have the unemployment office and benefits take care of the rest? Some operate this way.

If the company should provide outplacement services, severance pay and continued medical benefits for an extended period of time, how is it decided who gets what? Should the amount of severance pay depend on years of service, the employee’s job level, or what?

There aren’t any easy answers to the moral obligation question. Companies are all over the map on this issue. Considering the Acme case, the company seems to have extended itself to accommodate Dinah. I really can’t think of much more that Acme could have done given the nature of her illness.

The answer to the moral obligation question (if there is one) seems to depend on what type of culture the company wants to engender. Southwest Airlines prides itself on taking care of its employees and, in fact, has a special fund set aside to cover employee emergencies and illnesses and the like. Because of these practices, Southwest employees have a fierce loyalty to the company, which, in turn, contributes to the airline’s success and to the bottom line.

I’m a big fan of strong cultures like that at Southwest because the policies clearly address the issue of the company’s moral obligation and lead to financial success. However, there’s a point at which these policies can be abused and become a financial detriment. Acme, or any company, must decide where it stands on this issue (and why) and develop policies to support that decision. The policies are then publicized company-wide so that everyone’s expectations are clear and the policies enforced.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

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