Monday, February 18, 2013

Obsessing (compulsively) over reasonable accommodations


I grew up with a guy who really liked the Presidents of the United States (the actual Presidents, not the 90s alt-rock band). He was so fond of them, in fact, that he had a complete collection of presidential figurines in his bedroom. He kept them in chronological order, in perfectly straight rows, on his dresser. And he instinctively knew if you moved one out of line. He’d swoop in and fix it almost as quickly as one could say “John Adams.”

As far as I know, this person did not have obsessive-compulsive disorder. But, what if he did, and he what if he worked for you? Would you have to accommodate this employee’s OCD, and if so, how?

The first question is the easy one to answer. Under the ADA’s liberal definition of disability, OCD is almost certainly a covered mental disability.

The second question, however, is trickier. If the OCD inhibits the employee’s ability to perform the essential functions or his or her job, then, yes, you have to make a reasonable accommodation, but only if you can do so in way that will enable the employee to perform those affected essential functions.

In other words, it depends. Consider these two examples—

  • In Earl v. Mervyns, Inc. (11th Cir. 2000), the plaintiff, a retail manager, claimed that his OCD prevented him from arriving to work on time in the morning. The court agreed with the employer that punctuality was an essential function of his position, and concluded that no accommodation would meet the needs of his OCD. Thus, the court deemed the plaintiff “not qualified” under the ADA and upheld the dismissal of his disability discrimination claim.

  • Yet, in Humphrey v. Memorial Hosps. Ass’n (9th Cir. 2001), the court concluded that the employer failed to consider whether either a leave of absence or telecommuting arrangement would have enabled the plaintiff, a medical records transcriber, to perform her job with her OCD.

The lesson here is not so much about accommodating OCD as an ADA-covered disability, but a broader lesson about handling any disability in the workplace. You need to have a dialogue with an employee about reasonable accommodations. Without opening the channels of communication, you will never know what is feasible. More importantly, without the dialogue, you probably have not satisfied your obligations under the ADA. As the court in Humphrey correctly pointed out:

Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations…. The interactive process requires communication and good-faith exploration of possible accommodations between employers and individual employees…. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible….

Moreover, … the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encouraging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommodation might be ineffective.

In other words, talk with the employee. You’d be surprised how many employment problems you could head off with an earnest and open conversation.

Until tomorrow…

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