Depression and the ADA: Is It a Disability?

A bank employee suffers from bouts of severe depression, resulting in a persistent pattern of absenteeism and tardiness. Is she entitled to protection under the Americans With Disabilities Act (ADA)? A depressed night shift engineer repeatedly falls asleep on the job and asks for the "reasonable accommodation" of being allowed not to work for an extended period. Does the ADA require that the employee be given several months off? A lab technician, suffering from mental illness, tells his therapist that he is thinking of killing his supervisors. If he is discharged, have his rights under the ADA been violated?

In all three situations, the likely answer is no. The ADA protects individuals with mental or physical disabilities from being discriminated against because of the disability, but it does not require employers to tolerate misconduct, even if the misconduct is caused by the disability. The ADA also requires employers to make reasonable accommodations to qualified individuals with a disability to enable them to perform the essential functions of the job. While in some situations a short-term leave of absence or a shortened work schedule may be an appropriate accommodation, the ADA generally does not require that an employer provide an accommodation that allows the employee not to work at all for an indefinite period.

As a general rule, mental disabilities such as depression are covered under the ADA, if the employee can demonstrate that the alleged disability substantially limits a major life activity such as learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks or working in a broad range of jobs. Sleeping is also a major life activity. Chronic, episodic conditions may be protected under the ADA if the condition is substantially limiting when active, or has a high likelihood of recurrence in a substantially limiting form. Thus, even if a disability is not currently active, an employee who needs an accommodation to continue controlling symptoms may be covered by the ADA. Because coverage turns on the specific facts of each case, it is difficult to fashion a quick guide for employers with concerns about their obligations to employees suffering from depression. But a few examples may be instructive. In one case, a night shift engineer, because of depression, could not stay awake on the job and had become too suspicious of his coworkers to tolerate them. As a result, the employee was incapable of working and asked that his employer accommodate his disability by allowing him not to work. The court rejected the employee's position, stating that the ADA required accommodations that allowed the employee to perform the job's essential functions. "Not working is not a means to perform the job's essential functions. An inability to do the job's essential tasks means that one is not "qualified"; it does not mean that the employer must excuse the inability."

In another case, a court ruled that an employee diagnosed with depression and anxiety had not shown that her condition substantially limited the alleged major life activity of "emotional stability." The employee suffered from "anxiety attacks" several times a year, which caused her difficulty in breathing and forced her to take a break from work. But the employee perceived herself as functioning normally in society, able to care for herself and her small child and able to attend college part-time; she performed all her job requirements satisfactorily. The court ruled that the employee was not substantially limited in a major life activity and accordingly was not entitled to protection under the ADA, despite evidence that she had attempted suicide, washed her hands compulsively and was incapable of living independently of her parents.

The ADA does not require employers to retain a potentially violent employee, even if the behavior is precipitated by a mental illness. As one court held, "Such a requirement would place the employer on a razor's-edge — in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone."

Even if the effects of mental impairment may be debilitating, a plaintiff cannot simply allege that he is disabled because they are generally unable to do stressful work. For example, one court concluded that the plaintiff was not disabled within the meaning of the ADA even though he had suffered a nervous breakdown and had been diagnosed with depression-related illness and stress disorders for more than ten years. The court concluded that the plaintiff's condition did not substantially limit his ability to work but also held that as a matter of law, his request for transfer to a position free from stress was an unreasonable accommodation.

Under the ADA, protection for mental or psychological conditions requires an initial determination that the employee has a "disability" within the meaning of the statute. This means that the employee must have an impairment that "substantially limits one or more major life activities." The ADA does not cover temporary impairments such as a broken leg or appendicitis or, similarly, a short bout of depression. The specific issue in each case is whether the alleged condition renders the employee disabled under the ADA and further, whether the disabled individual can perform the essential functions of the job with or without a reasonable degree of accommodation by the employer. Be aware, however, that employees who are not covered by the ADA may have other rights under various state and federal laws. Consult an experienced employment law attorney regarding the specific facts of your situation. A few points:

• Not every physical or mental condition constitutes a disability under the ADA.
• Not every disciplinary action against a disabled employee is illegal.
• Employers are prohibited from asking applicants about mental or physical conditions prior to making a conditional offer of employment.
• Unless the disability is obvious, the employee must notify the employer about the disability but need not use any "magic" words such as "reasonable accommodation" or "ADA."
• The employee and the employer must engage in an interactive process to explore reasonable accommodations.
• Employers may require a job-related medical examination to obtain an opinion about the existence and extent of the alleged disability.
• An individual with a disability must be able to perform the essential functions of the job with reasonable accommodation from the employer.
• The ADA does not protect employees from the general stresses of the workplace.
• A disability is not an excuse for job-related misconduct or violence.

Finally, and most important, SEEK LEGAL ADVICE: Not only is the ADA complex, but it is also only one of many laws that employers must consider. In each of the situations described above, even if the ADA were not applicable, the employee might have had rights under state or federal family leave laws. Further, employers are cautioned to avoid the use of words such as "disability" or "reasonable accommodation," which imply that the employer "perceives" the employee as disabled, thereby creating protections that might not otherwise be available to a nondisabled employee under the Act.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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