Rainy, cloudy, wet, overcast, with morning showers, and drizzle throughout the day — it's March in the Pacific Northwest. Few can argue that there is any better place to live than Oregon or Washington in the summertime, but around this time of year, many of us transform into mole people, severely deficient in Vitamin D, and quick to correct anyone who thinks the sky is blue.
For some, the dreariness of this season is simply the price that must be paid to live in one of the best regions of the country. For others, however, October marks the beginning of another cycle of seasonal affective disorder ("SAD"), complete with depression, anxiety, loss of energy, difficulty concentrating, and social withdrawal.
Can Depression Qualify as a Disability Under the Americans with Disabilities Act ("ADA")?
Yes. Wintertime blues are nothing new to employers in this region. The question, however, is whether and when a bad mood crosses the threshold into a protected disability.
Under the ADA, if an employee is a "qualified individual with a disability," the employer must make reasonable accommodations for the employee, barring undue hardship. This applies to private, state, and local government employers who have 15 or more employees.
A qualified individual with a disability is someone who, with or without reasonable accommodation, can perform the essential functions of his or her job.1 In general, a reasonable accommodation is "any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities."2 For a person with limited mobility, this could mean modifying the physical worksite. In the case of SAD, it might mean permitting the employee to use a light-therapy box in his or her work space.
A "disability" means, among other things, "a physical or mental impairment that substantially limits one or more major life activities." Major life activities include caring for oneself, eating, sleeping, learning, concentrating, thinking, communicating, and working. Therefore, depending on the severity of an employee's depression and the ability of the employee to continue to perform the essential functions of the job, he or she can be protected under the ADA, even if the depression is seasonal as opposed to year-round.
What Should an Employer Do if an Employee Suffers from Depression?
Depression should be treated the same as any other potentially qualifying medical condition under the ADA. If an employee initiates the discussion, the employer should engage in an interactive process to clarify the nature of the disability, and the employee's functional limitations and to identify appropriate, reasonable accommodations. The interactive process is an affirmative obligation on the part of the employer under the ADA to engage in a dialogue with the employee about a potential accommodation.
It can sometimes be difficult to recognize that an employee is asking for an accommodation because no magic words such as "ADA" or "reasonable accommodation" are required. The employee need only use plain English to let the employer know that he or she needs a change at work for a reason related to a medical condition. For example:
- "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing."
- "I need six weeks off to get treatment for a back problem."
- "My wheelchair cannot fit under the desk in my office."3
Employers can also be obligated to initiate the interactive process even if an employee fails to communicate a need. This occurs when the employer:
- Knows that the employee has a disability;
- Knows, or has reason to know, that the employee is experiencing workplace problems because of the disability; and
- Knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.
Because individuals who suffer from depression may not always recognize the severity of their conditions, an employer who knows that an employee suffers from SAD or depression generally (through previous self-disclosure or a request for accommodation by the employee's family member, friend, or other representative) should be ready to engage in the interactive process when the employer knows, or has reason to know, that the employee is experiencing workplace problems because of the disability.
A word of caution: An employer who merely suspects, but does not know, that an employee has a disability must not ask the employee if a reasonable accommodation is required. Doing so could trigger ADA obligations for regarding the employee as having a substantial impairment. In this case, the employer should wait until the employee communicates a request for an accommodation explicitly or expresses a need for a change at work for a reason related to a medical condition.
Finally, it is important to remember that each situation is different. Even if two employees who work in the same unit suffer from the same condition, they may experience the symptoms of the condition very differently. Do not take a one-size-fits-all approach. Instead, analyze each situation individually to come to the most appropriate solution under the circumstances.
If you have questions about how to navigate these sensitive situations, please consult with your employment law counsel or feel free to call us. We are always happy to help.
1. 42 USC 12111(8).
2. 29 CFR 1630.2(o).
3. EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilites Act, Requesting Reasonable Accommodation.
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