DISCLAIMER: The background to this legal analysis is completely fictional, created without reference to any real individual or actual situation. The fiction serves only to set up the analysis. Any detail coinciding with a real employee or employer is completely random and coincidental.
The Fictional Accommodation Background.
George has been a college professor for twenty years at a public university where he teaches laboratory chemistry. George has been tenured for the last 15 years.
George was always a little awkward socially, but people saw that as simply a quirk of his nerdy personality. George has changed over the years to be less sociable, and has become increasingly reclusive over the last years. His colleagues and students could hear him chanting in his office. During those times, even during student hours, he would lock himself in his office, and refuse to answer knocks on the door. He shaved his head. He often peppered his conversations with reference to Buddhist aphorisms, whatever the subject might be, including his classroom lectures.
Recently, his students and colleagues noticed that he is mumbling to himself. George is aware that he is being observed at such times, and so he pretends to use a mobile phone during his “conversations.” Recently, in the middle of his class, he had an outburst. He demanded angrily that a person get out of his classroom immediately. He walked directly over to an empty chair as he yelled that he knew who the person really was, and what they wanted. The student seated in the adjacent chair bolted from the classroom frightened that George meant to direct his anger toward her. She later brought a complaint of harassment against George, and complained that she did not feel safe in his classroom. As a result, George was suspended from his position pending an investigation.
“They’ve gotten to the Dean at last,” he said to his wife Gladys.
“What do you mean?”
“They know I have knowledge about their chemical warfare plans.”
“Them. The Russians. They know I have formulas and want my lab notes. They know I am all that stand between them and the formulas.”
“There are no Russian operatives. You’re hallucinating.”
“That’s what they want you to believe. It’s how they play the game. And they know that I know. They have to discredit me.”
“You need help,” his Gladys said, placing her arms around him to hold him, but George became agitated.
“Don’t be condescending. This is serious.” He pushed her away, and went into his home office, slamming the door behind him.
Following the investigation, George received a letter from the Dean informing him of the University’s intention to terminate his employment because of his erratic conduct and failure to meet the requirements of his position. An internal hearing was set to permit George to respond to the proposed disciplinary action.
The suspension letter angered George. “I need to get into the lab. The Russians are probably already seizing my work logs. It’s obvious they’ve infiltrated the administration.”
When George got into his car that night, Gladys called Campus Security. Campus Security in turn called the police. Gladys explained her husband was mentally ill. “He’s sick. He’s imagining things. He intends to break into the University. Please don’t hurt him. He needs help.”
“Is he dangerous? Does he have a weapon?” the dispatcher asked her.
“No, George, he’s a total pussycat, but he’s hallucinating. He thinks the Russians are behind his job loss. Please stop him before he commits a burglary.” She gave the police the details of his car, and his appearance. She scanned and sent a photo to the police department.
“Sir, what are you doing here?” the police asked George. “The University is closed for the night.”
George was standing at the door to the Chemistry building on campus. “I’m a professor here. I have business here. I need to retrieve some of my books and notes from my office.”
“Your wife called us professor. She tells us you were instructed by the Dean to stay off University property pending an investigation.”
“You’re involved with them aren’t you? They sent you here. What’ve you done with Gladys? She’s not part of this. Leave her alone.”
“Nothing sir. Your wife is fine. But you need to come with us. You’re not supposed to be here.”
When George made a break for it, a young officer bolted after him, tackling him from behind. He quickly pinned George’s arms behind his back while pressing his bent leg into the low of George’s back so hard that George screamed. With a few swift movements another officer wrapped a plastic tie around George’s wrists. Twenty minutes later they were at County Medical Center, were George was placed on 72 hour psychiatric observation. At that point, the doctors decided to extend the hold for an additional two weeks, during which George received medication and therapy. The voices subsided, and his thinking became more grounded. He elected to voluntarily stay in treatment another 30 days.
“It’s been hell,” he said to wife one afternoon during visiting hours. I’m just starting to see how bad things were. I’m looking to getting out of here, and going back to work.”
Gladys realized she’d have to tell him sooner or later. Maybe now was the best time, while he was under supervision.
“We got a FedEx from the Dean.”
“I imagine they’re wondering when I’ll be back.”
“Not exactly George. They say you abandoned your position. They decided to let you go.”
“Did you tell them I was hospitalized.”
“I said you were very sick. I didn’t tell them your were in a locked psychiatric unit. I told them I’d call them with an update when we knew something.”
“Did they ask for more information?”
“No, the woman just said, “Okay, let us know.” Then I got the termination letter.
George seemed to just freeze at that point. His expression became blank, as if his soul had left his body.
“Honey, look at me.”
George didn’t move. Several weeks passed when it seemed like George was gone forever. He wouldn’t talk or eat. The voices came back for a time. When Gladys visited him, he was sedated that he could hardly form his words. Finally, he began to respond to questions and seemed to recognize people around him. He spent another 60 days in the hospital, and was released home, but advised to rest. It was another 60 days before his doctors released him to return to work. But there was no job for him to return to. He had been a professor all his life.
“I’m over 50. I’ve lost tenure. How will I ever find a job?”
Did George Have a “Disability?”
You may think that is obvious in this case. The answer is “yes,” but knowing the “rules of the game” is still important. First, mental disabilities are to be treated no differently than physical disabilities under the ADA or California law. Congress amended the ADA effective 2009 to make proof of a “disability” much easier. The focus shifted from a high threshold of impairment to a focus on whether the disabled person “qualified” for accommodation. The law protects against not only discrimination in the hiring of a person, but also in the conduct of the employment once hired.
California law liberally defines “disability.” A “mental disability” in California includes “intellectual disability” or mental illness that limits a “major life activity.” A “limit” exists if it makes the achievement of the major life activity “more difficult.” Finally, a very broad definition of “major life activity” is found in California law to include mental, physical and social activities “and working.” Government Code Section 12926(j). Basically, almost any ongoing degree of impairment will qualify as a “disability” even if medication or medical devices mitigate or eliminate the extent of impairment.
Is George a “Qualified Individual” for Accommodation?
So now the question shifts to what is a “qualified individual” who merits accommodation? A “qualified individual” is an individual who: (1) with or without reasonable accommodation (2) can perform the essential functions of the position he or she holds or desires, and (3) has the requisite skill, experience, education, and other job-related requirements of the position.
George as a college professor must perform these essential functions: read, understand, condense, and communicate complex chemistry concepts; interact in supportive mentoring relationships with students; design, deliver, and grade student performance, and conduct leading edge research leading to publication. His disability, expressed as hallucinations and paranoia, and social withdrawal, affect all these functions. As of now, despite his improvement under psychiatric care, more information is needed by the employer to assess if he can be “reasonably accommodated.”
Getting the “essential functions” out on the table is critical. The employer may list a hundred functions as “essential,” and the employee might prefer only one. The truth is likely that there are 5 or so such functions broadly stated. But if the employee fails in performing any one of them even with “reasonable accommodation,” there is no ongoing duty to provide employment.
“Is George entitled to reasonable accommodation?” You may think the obvious answer is “yes,” but George has not specifically requested accommodation. Both the ADA and California law requires George to make the request as a condition of the duty to accommodate George. But George and Gladys have been in “crisis mode.” George has been heavily medicated the last few weeks. Further, the employer had abundant reason to suspect that George was mentally ill based on his increasingly erratic behavior, but they did nothing to reach out to him to see if he needed help.
Does Accommodation Require A Request for Accommodation?
Should George be given an exemption form making a formal request? In this case “Yes,” because the employer is not speculating that an accommodation is needed. The University management knows George is seriously ill with a mental disability because Campus Security prepared a written report of the incident. The report included details from Gladys when she first contacted them to warn them of George’s erratic conduct. The report included the detail that police transported George to a mental health hospital for observation.
EEOC guidelines state a formal request for an accommodation is not needed where the employer knows the employee has a disability, knows the disability is affecting the employee’s ability to perform work, and that the disability prevents the employee from making an express request for accommodation.
But the University made the argument that George knew he was getting progressively worse, but took no steps while he was still reasonably lucid to seek an accommodation.
They argue that waiting until after the termination of the employment to ask for accommodation is too late. Cases support the University position, but in this case, the nature of the mental illness is hallucination, withdrawal, distrust, and paranoia. That is, the illness itself prevented George from fulfilling a legal duty to request accommodation, at the same time the University management had reason to know of the disability, the need for accommodation, and George’s inability to request accommodation.
George later stated that only after medication and treatment, was he able to communicate a cogent request. He also made the case that the employer had enough information to initiate a “fitness for duty” exam, but ignored all the signals.
Although it’s a close call, I predict that with the right medical evidence describing George’s impairment and inability to track his own descent into paranoia and hallucination, the court will relieve him of making a formal request, and will place the burden on the employer to see and respond to his need for accommodation.
Reasonable Accommodation and the “Interactive Process.”
So, even if George is relieved of the need to make a specific early request, is he so disabled that he does not qualify for accommodation? The answer begins with getting more information from George, and providing needed information to his treating physician to get an assessment. The goal is to reach to a conclusion whether George can perform the “essential functions” of his job based on his physician’s statement of his restrictions. This is called the “interactive process,” and it is the core mechanism of the accommodation duty.
The University will have a difficult time arguing in court that it could not reasonably accommodate George if it did not first conduct an interactive process to make that decision. California has a statute requiring the employer to conduct such interactive process.
George’s mental state clearly reached a stage that fully disabled him from any of the functions of his job. But the question will be: if he had been accommodated at the outset with some time off from work to reach a functional level, how much time would have been a “reasonable accommodation?”
There is no one answer for every employer and employee. But, time off is one of the ways an employer can and should accommodate an employee. In this case, the University had a list of qualified professors and doctoral candidates who could cover for George for up to a year. Further, the University had granted sabbaticals and leaves of absence for other non-disabled workers in the past while holding their jobs open. Finally, the University even had a short-term disability benefits policy that allowed for 80% pay for up to one year. A year off from his position to recover to functional ability is likely to be found to be a “reasonable accommodation” for George, although for many other employers, such a long time off would be an “undue hardship.” An important point to note here is that the FMLA is not the final word of a “reasonable” time off from work. The “reasonable accommodation” law operates independently of the ADA, and sets a minimum standard for recovery from a “serious health condition.” The ADA may extend the duty of time-off to recover to be greater than 12 weeks.
How Does George Bridge the Disability and the Accommodation with a Plan?
The parts of the puzzle don’t fit without an actual plan to execute the accommodation. That plan is the result of a lawfully sufficient interactive process. In this case, the plan was to reinstate George’s employment, and to hold his position open for a period of one year. Although this was costly and inconvenient, it was not legally “an undue hardship” based on evidence of similar accommodations of other professors in like positions who were on “sabbatical” and not disabled. At the end of the year, the University requested a “fitness for duty” examination by George’s physician to readdress whether he could perform the essential functions of his job.
What if additional new accommodations are needed? The duty to accommodate is ongoing, and George, on returning to work, may need a modified work schedule, or small class size, or additional doctoral teaching assistant, or other adjustments. The fight may well be whether a certain function is essential. Is it essential to the position to teach a minimum of 5 days a week, or is 3 essential? Is publication in scholarly journals twice a year essential, or is one publication per year enough? What if a part time position is vacant? Does George get preference to fill that vacancy? Unless George is in a Union setting other rules for filling vacancies, the answer is “Yes.”
Reasonable Accommodation May be a Hardship, But Still an Employer Duty.
The University, or any employer perhaps, is tempted to treat any “hardship” in accommodating as an “undue hardship.” But it is the University’s legal burden of proof to present evidence that the accommodation is so disruptive to its operations, or such a disproportionate drain on its overall resources that the burden is an “undue” hardship. Mere opinion is hardly persuasive. The University needs to identify specific costs, assign dollar amounts to those costs, and show those costs as a percentage of the total operating budget in man-hours and finances to the University.
If George presents evidence that the University budget is big compared to the specific costs, and that other non-disabled professors have had their class assignment requests honored for months at a time, it may be he will rebut the University’s initial proof that the scheduling accommodation is an “undue hardship.”
On a final note, the University’s swift seizure of the opportunity to fire George without inquiry concerning his condition, and without apparent compliance with the due process of firing a tenured public employee is likely going to be powerful evidence of discrimination.
Conclusion: Disability Accommodation is a Step by Step Decision Process Requiring Good Faith by Both Employer and Employee.
The Disability Accommodation process is a collaborative endeavor to reach a legally compliant decision. It requires transparency and timely inputs from all the participants: the employee, the treating physician, and the employer. The process moves from the general [“I need help”] to the specific selected best option. [We will adjust your hours and schedule, or allow rest breaks, or extend time off, or supply labor assistance, or make physical work space changes, or even locate an alternative vacant position] that will allow you to be fully employed. The employer needs to accept that it is to play a proactive and engaged role in making this process succeed to fulfill the purpose of the law stated in California Government Code Section 12920: It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of . . . physical disability, [or] mental disability.