Tweet

I have an employee, Bill, who’s been with us for four months. A couple of weeks ago, his manager called me to say that Bill had anxiety, clocked out, and was in the break room. The manager checked on him, and Bill said he was okay and needed a few minutes. HR reached out to the employee to follow up but received no response. Today we got a call that Bill called out due to post-traumatic stress disorder. I will call him again to ensure he’s okay and knows about the resources available through the employee assistance program. I’m always fuzzy on whether or not I should offer accommodation paperwork if the employee doesn’t ask for it. He’s not eligible for leave under the Family and Medical Leave Act, but I believe both anxiety and PTSD would allow for Americans with Disabilities accommodation. Do I offer in this case?

This story is part of our January 2023 print issue. To subscribe, click here.

This story is part of our January 2023 print issue. Click here to subscribe.

You’re right that an employee who has only been with you for four months is not eligible for protection under FMLA, but he is eligible for protection under ADA from the moment he attempts to apply. Federal law says that only companies with 15 or more employees must provide ADA protection, but California law brings that number down to five.

So he’s definitely eligible for reasonable accommodation under ADA, but he didn’t ask for it. It can feel awkward to go to someone and say, “Hey, you need help!” But the ADA law is tricky that way.

The law assumes that managers and HR know about it, but that employees don’t. Therefore, the law requires you to act whether you knew or should have known that an employee needs accommodation. Since ADA can cover anxiety and PTSD, you need to go through the interactive process with your employee even though he didn’t ask for it. Here’s what you need to do:

Verify the disability.

Provide the employee with your ADA paperwork and send him to his doctor or therapist to get that filled out. You can also choose to trust Bill’s statement that he has anxiety and PTSD without sending him to the doctor, but it’s better to get verification. 

Go through the interactive process.

This sounds like something formal, but it can be just a conversation. The doctor or therapist should tell you what the employee needs, but you don’t have to do precisely what the doctor says — or exactly what the employee wants. The goal is to go back and forth to find a solution that works for both the employee and the company, hence the term “interactive.” 

Employment attorney Jeff Nowak, author of the blog “FMLA Insights,” suggests starting any interactive process with the question, “How can I help you?” Remember, your goal is to help Bill be successful in his job. It’s not a battle you’re trying to win. Asking “How can I help you?” sets the right tone for the meeting.

Nowak also suggests that if an accommodation is easy to implement, just do it. So when an employee comes to you and says, “I have terrible back pain. Can I get a standing desk?” you say, “How about this desk topper one that costs less than $50?” and you get it. Problem solved. You’ll probably be surprised at how many accommodations are that simple — no need to go through tedious meetings. 

Even with mental health problems, you may find that the solutions are simple. Taking a 15-minute break when needed, putting a “rear-view mirror” on a cubicle so no one can sneak up behind your employee, or flipping a desk around so your employee’s back is to the wall can all help.

The accommodation has to be reasonable. The employee may say that working remotely is the best thing for mental health. If your business is running a warehouse and the employee needs to be on the floor, that’s not a reasonable request.

Always err on the side of an accommodation. And never terminate an employee without consulting an employment attorney. The law can be tricky, and you don’t want to make a mistake that will cost your business hundreds of thousands of dollars. 

That said, don’t panic about this. Approach the employee with the paperwork and a smile. Remember that both of you have the same goal — a successful job well done. 

Follow up.

After the business approves the accommodation and puts it in place, make sure you follow up. Sometimes you’ll need to mediate between the manager and employee, or between the employee and coworkers who don’t understand why Bill gets to take an extra 15-minute break. Keep medical information confidential, but carefully ensure that no one retaliates against Bill for getting the help he needs to succeed.

–

Stay up to date on business in the Capital Region: Subscribe to the Comstock’s newsletter today.