In the Trenches: Reasonable accommodations for mental disability?

Are there any situations under which a company is obliged to make reasonable accommodations for a mental disability to parallel the obligation to accommodate a physical disability? Acme runs into a difficult situation with an employee it dismisses with a mental disability in the latest In the Trenches. Only the names have been changed to protect the innocent.

Seven years ago, Terry Musalada started out as a part-time assistant receptionist. Within six months, her status was upgraded to full-time assistant to Security Chief Pat Downe.

On the first day in her new job, Pat explained that Terry is the “face of Acme” because of the contact she will have with visitors to the plant and offices. He also told her that she was selected because of how well her personal characteristics and demonstrated job performance matched the written job description for the security assistant position — excellent interpersonal skills, professional appearance, calm demeanor and imposing presence.

In her new role, Terry sat at a desk behind a counter at the center of the back wall of Acme’s large, somewhat ostentatious reception area. As the first person visitors saw when they walked into the lobby, Terry issued and tracked visitor badges, answered questions, and contacted the specific employee a visitor wished to see. And, of course, she and Pat were the first to be called when a terminated employee needed to be escorted out of the building.

Terry was tickled to have gotten this plum assignment because she had been unable to hold such a well-paying job for very long, and she needed the regular income as well as an excellent benefits package. What now pleased her even more was that, after about six years on the security detail, Acme thought she was good at it, as evidenced by her annual pay raises and good performance reviews.

A few months ago, Acme’s insurance carrier announced a substantial premium increase and benefit reduction. Not wishing to pass the problem on to employees, Acme changed carriers. Under the new plan, the employee premium rose slightly and benefits remained fairly constant, but the copay for office visits and prescriptions rose substantially. If employees stay healthy, they won’t have to bear the greater costs.

All went well until the middle of last week, when Terry added several pages to her personal Web site criticizing Acme for its low wage scale, exploitive tactics and crummy medical plan. Then, she brought in a stack of homemade flyers to advertise her Web site. When she handed them to visitors and employees passing through the lobby, she described the site content in a loud and raucous manner. At random times during her shift, Terry used her personal laptop to update her blog when another new idea struck her. She brought in a small radio and sang along with the music, clapped to keep time and danced in place at her position behind the counter.

Pat told her to take her radio and laptop home and never bring them back to work again. Terry replied through e-mail that she wouldn’t comply with such a silly, arbitrary rule. The next day, in fact, Terry spent nearly the entire morning updating her Web site from behind the security desk.

Other employees began complaining to Pat that Terry’s recent embarrassing outrageous behavior appalled coworkers and scared visitors. In response, Pat left his office, walked to the lobby and told Terry that she was expected to attend a meeting in the HR department before her shift started the next day.

The following morning, Terry came to work dressed in a black vampire outfit, complete with a high-collared black cape with red lining, a large, gold medallion hanging from a thin gold chain around her neck, pale makeup, black nail polish and bright red lipstick. She immediately went to her desk and phoned the police, her mother and a lawyer from the ACLU, speaking to each quite loudly. When Pat realized Terry was in the building, he went to the security desk to tell her that he was going to escort her to a meeting in the HR department immediately.

Terry merely called him an evil person, waved him off dismissively and refused to budge from the desk. Pat left and returned with Molly Cottle, the HR director, and two police officers. The cops told Terry that Acme wants her to leave the building immediately and if she didn’t comply, she would be arrested. Terry then walked to the center of the lobby and sat on the floor, staring straight ahead. The police took her into custody on charges of disorderly conduct.

Later that afternoon, Ken Wirth, the union steward, confronted Pat and Molly insistent that Terry not be terminated. The reason was that doing so would show discrimination against a person handicapped by a lifelong case of bipolar disease. He explained that Terry had been able to hide it by carefully controlling the characteristic paranoia, agitation, hyperactivity and irrationality through medication, but with the recent changes in Acme’s medical coverage, she went off her meds because they were now too expensive.

Are there any situations under which a company is obliged to make reasonable accommodations for a mental disability to parallel the obligation to accommodate a physical disability? What measures can a company take to avoid putting someone who is so close to the edge into positions of responsibility? Should pre-employment checking grant a company the right to dig into a person’s medical history? What obligation, if any, did Terry have to inform the company of her medical condition? Since Acme did not make any unreasonable demands or threaten Terry, are they within their rights to dismiss her?

An attorney says:

The Americans with Disabilities Act, as well as state laws that prohibit disability or handicap discrimination, protect employees with mental, as well as physical, disabilities. In all likelihood, Terry’s bipolar condition would qualify her as a protected employee under these Federal and state laws.

While Terry had no obligation to inform Acme of her condition, the burden was on Terry to request an accommodation from Acme if she felt she needed some change in the job duties or physical environment because of her bipolar condition to allow her to perform the job.

On the other side of the coin, Acme had no right to obtain information about Terry’s condition other than inquiring whether she could perform the job with or without accommodation.

However, under the circumstances of this case, Acme was free to terminate Terry, not because of her disability, but because she engaged in totally inappropriate conduct at work, conduct that could even be termed disloyal to her employer, and refused to comply with her supervisor’s orders to leave the laptop and radio at home. Courts have held that an employer isn’t required to tolerate an employee’s inappropriate conduct just because the employee is “disabled.” Any other approach, when carried to the extreme, would require an employer to retain a paranoid schizophrenic who came into work in the morning and shot and killed the receptionist.

The most interesting issue never arose in this scenario. It appears that the reasonable accommodation that would have allowed Terry to perform her job, while conforming her conduct to societal expectations, was a more generous medical plan. Alternatively, a pay raise likely would have sufficed. Courts generally haven’t been susceptible to employer pleas that the cost of accommodation is too high, yet no court that I am aware of has yet considered whether an employer is required to grant a pay raise or change in a medical plan as a form of accommodation.

That would have been an even more challenging issue for Acme to confront.

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

A corporate consultant says:

Why should Aacme be expected to retain Terry? The suggestion is absurd! Why should Acme continue to employ someone who exhibits the described behavior? The fact that she can't afford her meds isn’t Acme's problem. What is Acme supposed to do? Provide additional subsidies to any employee who isn't making ends meet? Deliberately increase their risk of losing customers and other employees to accommodate Terry being "off her meds" again? Yeah. Good idea. Let's make Acme keep Terry on until there aren't any more customers - until the entire organization is out of business. After all, it isn't Terry's fault; she has problems and we should understand and be compassionate.

Phooey! I mean - c'mon! Acme isn't a hospital, a counseling center, a parent or a charity. If Wirth had his own business, would he employ Terry?

Organizations take risks every time they hire someone. They have no way of knowing whether a new employee is a walking time bomb. It's just one of the hundreds of risks companies face when they set up shop. But once the medical condition has manifested itself to the detriment of the organization, Acme has the fiduciary responsibility to act on behalf of the greater good.

Look at what happened as a result of Pat's - what shall we call it - Compassion? Fear? Hesitance to act? By extending himself on Terry's behalf, she had and took the opportunity to further embarrass the organization; to further expose the organization to lost customers; and to further disrupt business.

Had I been Pat, Terry would have been put on administrative leave immediately upon distributing flyers to and verbally accosting visitors on company property. Then I'd have recommended immediate termination. The reason for her behavior is completely and totally irrelevant. No second chances when it comes to the organization’s image, reputation or safety.

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

An academician says:

There are a lot of legal questions here that I’ll leave to our attorney. For example, can a company ask for a copy of one’s medical record before hiring them? If Terry’s job included flying an airplane, probably yes. But in the case at hand, probably not. However, Acme could have picked up on the problem by checking with previous employers. And does this case fall under ADA regulations? Probably yes, but how do you provide “reasonable accommodations” for a person who runs an anti-company Web site?

My opinion on this case is probably colored by having gone though a similar case with one of our secretaries who had a bipolar illness. Mornings were very tough for her and she had difficulty functioning until her morning medication kicked in. Our HR people attempted to provide a “reasonable accommodation” by putting her on a flexible schedule without a fixed start time. However, it was difficult to predict when she would come in to work. On bad days, she simply didn’t show at all (and usually never called in to inform anyone about the absence). And when at work, she became agitated quickly and was unable to function when under stress.

This arrangement lasted about four years amid constant complaints from other employees and customers. Finally, HR bit the bullet and worked out a “separation” arrangement.

There’s no exact general policy regarding the obligations a company has to its employees, although there are legal restrictions that provide some guidelines regarding the rights of employees and employers. My take is that companies have a tendency to want to avoid this issue (as well as many other issues, such as sexual harassment) and, as a consequence, don’t take action unless it’s absolutely necessary. Acme’s action seems to confirm this assumption.

The lack of action not only is a disservice to fellow employees and customers, but also to the employee who is given the idea the inappropriate behavior is quite acceptable and thus there is no need to seek further treatment. HR should have been on the case quickly and should have moved Terry out, at least until her behavior was normal.

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

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