Articles 

Disability...Or Not?

Q. One of our employees dropped a bombshell last Friday, saying she could work only part-time starting Monday because her kids needed her home. Since each of our employees is swamped and we're too small to qualify for the Family Medical Leave Act, I told her I didn't think we could work around a half-day schedule.

She then burst into tears and left our offices. This morning, she returned with a note from a psychologist saying she was depressed. The psychologist, not a doctor, stated that depression could be considered a disability and that part-time employment was a reasonable accommodation that we as an employer were legally obligated to provide.

This is all over my head. What do I need to do here?

A. Call an attorney.

Your employee's psychologist might be wrong on two counts. First, depression might not be a disability, particularly if it doesn't limit a major life activity. Most genuine disabilities limit a major life activity. For example, blindness limits seeing; deafness limits hearing and the congenital loss of a leg limits mobility.

Unless emotional or physical problems limit a major life activity, they don't qualify as a protected disability. Depression might limit a major life activity if your employee can prove it limits thinking, concentrating, interacting with others, sleeping or caring for herself. Sound complicated? That's why you need an attorney.

Further, if your employee can treat her depression with medication, it might not be considered a disability, just as those who have a visual impairment that can be remedied with glasses or contact lenses don't have a qualifying disability requiring employer accommodation.

Second, although your employee's psychologist argues that you need to consider your employee's proposed part-time work schedule as a "reasonable" accommodation, he might be wrong. According to recent court cases, employers might be able to consider employees who can't work full-time at certain jobs as nonqualified for protection under the Americans with Disabilities Act. The Fourth U.S. Circuit Court of Appeals in Lamb v. Qualex Inc. said that if the essential duties of a position require an employee's full-time availability, it's neither unreasonable nor retaliatory to terminate an employee who can't work full-time.

Dr. Lynne Curry is a management/employee trainer and owner of the consulting firm The Growth Company Inc. Send your questions to her at lynne@thegrowthcompany.com

You can follow Lynne on Twitter @lynnecurry10 or through www.workplacecoachblog.com

© Lynne Curry, April 2013, www.thegrowthcompany.com

Back