Mintz On Air: Practical Policies — Accommodating Stress at Work: Legal Insights and Practical Strategies for Employers

In the latest episode of the Mintz On Air: Practical Policies podcast, Member Jen Rubin is joined by Associate Yeilee Woo for an unscripted conversation about how employers should navigate stress-related accommodation requests. This episode is part of a series of conversations designed to help employers navigate workplace changes and understand general legal considerations.

Together, Jen and Yeilee explore:

1. Whether workplace stress is a disability
2. Legal frameworks that apply to requests to accommodate workplace stress
3. What the interactive process regarding disability accommodations requires
4. The distinction between any accommodation and reasonable accommodation
5. The importance of manager training and detailed documentation
    

Listen for insights on practical strategies for handling complex workplace scenarios.

Practical Policies — Accommodating Stress at Work: Legal Insights and Practical Strategies for Employers Transcript

Jen Rubin: Welcome to the Mintz On Air: Practical Policies podcast. Today’s topic: Accommodate My Stress Now. I’m Jen Rubin, a Member of the Mintz Employment Group with the San Diego–based Bicoastal Employment Practice representing management, executives, and corporate boards. Thanks for joining our Mintz On Air podcast. If you have not tuned in to our previous podcasts and would like to access our content, please visit us at the Insights page at Mintz.com, or you can find us on Spotify.

Today I’m joined by my New York–based colleague, Mintz Associate Yeilee Woo, who, like me, represents employers in all aspects of employment law, including counseling clients about accommodating employee disabilities in the workplace — which, as many of you can appreciate, is an important and complex task, and one that needs to be done with a high level of expertise and a healthy dose of nuance. Thanks for joining Mintz On Air, Yeilee.

Yeilee Woo: Thank you for having me, Jen.

What Is the Legal Framework for Stress and Disability?

JR: Before we dive in, Yeilee, give us a sense of the legal framework for these issues. I want to start with a really simple example to illustrate them. Let’s say you’re a human resources professional and your employee tells you that the employee is really stressed out because the employee’s supervisor keeps piling on work, and it’s becoming too overwhelming. Yeilee, what is the legal framework for analyzing what seems to be a somewhat simple question?

YW: In this instance, there would be two — and sometimes three — sets of laws that apply. We look at the federal Americans with Disabilities Act (or the ADA), which generally requires accommodations for disabilities. We look at state-equivalent ADA laws, and sometimes municipal laws. Disabilities do not have to be physical; they can be mental health–related, which can be more complex to navigate because the diagnosis and treatment of mental health issues can be challenging for health care providers, let alone employers learning how to accommodate those issues in the workplace where the disabilities are not necessarily visible or obvious.

In addition to these laws, there are other laws or employer policies governing disabilities, such as an employee handbook that deals with leave or accommodation requests. Lastly, there are workers’ compensation schemes, which require leave and sometimes compensation for injuries that occur in the course of employment.

JR: That’s just a few things to keep in mind. And we have multiple legal frameworks here: state, federal, possibly local. We have the employer policies that could potentially govern. We’ve got workers’ compensation schemes. This is a lot for employers to keep in mind. And this requires a tremendous amount of time for our human resources professionals. But setting this aside, can you briefly explain, Yeilee, how these laws might apply to an employee who says, “I’m just too stressed out to work”?

YW: First, the employer would look at whether federal or state ADA laws apply — and they do to most employers who have more than a few employees. The employer may be obligated to accommodate an employee who claims a stress-related disability, which means undertaking the interactive process with the employee to determine what type of accommodations the employee is requesting and whether those accommodations are reasonable.

Then the employer looks at whether its own policies apply. They could look at either their handbook or other written policies that they distribute to employees. The employer should make sure that the employer is following those policies. In terms of workers’ compensation, those laws apply to every workplace. It may be that the employee should be notified that the employee has the right to make a claim under workers’ comp, but that claim will be handled by the insurance carrier who will then make its own determination regarding whether the claim is meritorious. Issues relating to workers’ compensation disputes are generally handled exclusively within the state-driven administrative or legal framework.

Is Stress a Disability in the Workplace?

JR: Now let’s go back to that initial hypothetical that I laid out. Here we have an employee who’s really stressed out because the employee’s supervisor keeps piling on the work and the employee says that the employee is completely overwhelmed. Let’s say you’re a human resources professional — the employee comes to you and says, “I need an accommodation.” First question for you, Yeilee (and I realize you’re a lawyer and not a health care provider), but is stress a disability?

YW: That’s an interesting question, Jen. First, stress itself is generally a symptom. It’s the body’s reaction, which can be both physical or mental, to perceived challenges or threats. However, stress itself is not a disability. With that said, certain underlying physical and mental conditions can add to or amplify someone’s reaction to stress. Stress can be a symptom of an underlying medical condition that qualifies as a disability under the law, but by itself stress would not be enough. So if someone tells you they need an accommodation for stress, that is not the initial question you need to answer as an employer. However, it is the first part of the interactive process that both federal and state laws require the employer to engage in.

What Is the Disability Interactive Process?

JR: What is that interactive process?

YW: Both federal and state laws generally require an employer to engage in what’s called an “interactive process” with an employee, which involves understanding whether there may be a disability that needs to be accommodated, and how, if at all, the employer can provide those accommodations and not necessarily the exact accommodations that employee requests.

JR: The interactive process says, “Employer, you need to have a discussion with your employee or communicate with your employee as a starting point.” So when somebody says, “I need you to accommodate my disability or accommodate my stress,” here’s a question for you. In so far as that interactive process, can you tell the supervisor to stop piling on the work and making demands of the employee? I mean, is that something that would be deemed to be a reasonable accommodation under the circumstances?

YW: That’s a complicated question, but I would say that’s the ultimate inquiry for the employer. Generally speaking, the essence of the employment relationship is that the employer (within reason) gets to tell the employee what to do, how to do it, where to do it, and when to do it. That includes the employer’s right to set the parameters of the amount of work that’s required. That is the exact meaning of being employed. However, before you get to that somewhat easy answer, an employer might first undertake the inquiry into whether the employee is indeed disabled and whether that disability might lead to the obligation to address the stress response. It’s important to remember that each individual employee is different in how they perceive work demands and how they handle pressure or stress, and some may take it harder than others. Therefore, the employer’s inquiry needs to be done on an individualized basis and in consideration of the relevant circumstances. The answer, as usual, is more complex, as there’s quite a bit of nuance and context that apply.

JR: For me, that brings home the “why AI can be problematic for employers” when used in this context: Because having these conversations and these human communications is so important to getting at the underlying questions of “what is the accommodation you need and why,” and “is the stress coming from or emanating from a disability, or is it something that you’re experiencing for other reasons that are easy to address outside of this interactive process”? It’s complicated under the circumstances.

With that said, let me make it even more complicated. Let me give you another hypothetical. Let’s say we have an employee who’s just plain difficult. They’re constantly countermanding directions. They question everything. Let’s say they complain about things frequently, even blaming the managers who don’t give the employee enough space. They say, “You’re putting too much pressure on me. I can’t deal with this. I don’t want to deal with this. Enough is enough.” The employee comes to you and says, “I need an accommodation from what I’m calling workplace-induced stress” — which, by the way, could be partially created by the employee. How does the employer approach that request for this particular employee? What are some guidelines?

YW: I would start by going back to the basics instead of getting caught up in the details and the drama. First ask, what are the employee’s essential job functions? What specific accommodations is the employee requesting? Can the employee perform the essential functions of the job with accommodations? Have any other employees who are similarly situated or in the same role or department complained of high pressure to perform? Is that just the general nature of that position?

The initial thinking here for the employer is similar to your first hypothetical: whether there is more than just workplace-induced stress to qualify as a disability. It would be a good-faith dialogue between the employer and the employee that may require obtaining, with limitations, some documentation from the employee’s health care provider to assist in understanding whether there is a qualifying disability and what accommodations would allow that employee to perform. This is particularly true where the disability and/or need for accommodation is not obvious. And keep in mind that where medical documentation is obtained, the employer must keep the information confidential and limit disclosure to those HR professionals or other personnel on a need-to-know basis.

Going back to your hypothetical, this particular employee’s failure to follow directions, blaming managers –— it seems like a red flag, right? This employee certainly doesn’t sound like the ideal employee. However, that doesn’t do away with the employer’s duty to engage in an interactive process so long as a reasonable accommodation is requested. The employer needs to try to provide the reasonable accommodations that don’t pose an undue hardship on the employer. However, it doesn’t sound like this employee will last very long.

Two side notes on this question: The first is that documentation is key for employers. If this employee’s behavioral or performance issues are well documented prior to the employee raising a need for an accommodation for stress, it helps the employer make a case for why accommodations would not help, or why it needs to part ways with the employee. The second side note is that managers and supervisors are often the first responders to disability disclosures or requests for accommodation, so they need to be well educated and trained by the employer about the employee’s legal rights and the need to maintain confidentiality. In this hypothetical, this manager that’s “inducing the workplace stress” cannot retaliate against the employee even if the employee claims the manager is the cause of their stress.

JR: Basically a healthy dose of patience, getting back to the basics, and making sure that the facts are understood. And importantly, as with many things that are employment related, ensuring that the communications are appropriately documented and managed internally by making sure that to the extent medical information is provided, it’s appropriately segregated from most employee personnel records.

All of these things are important, going back to the basics and all of that. But I’m going to use the term benefit of the doubt — it sounds to me like this concept should be applied, and people should be given the understanding that the workplace can be stressful, the workplace can be hard. Somebody’s telling you what to do, how to do it, when to do it. We all appreciate that as employees in our experience; it can be tough.

Performance Management and Stress Leave

JR: I want to turn to something that, in my experience as part of the employment landscape, happens frequently: Let’s say an employee has been performing poorly and the employer calls the employee for purposes of putting the employee on a performance management plan. What happens in this circumstance if the employee responds by saying, “I need stress leave”? What are the practical implications, Yeilee? How far does an employer have to go to accommodate that request for “stress leave”?

YW: This has been coming up quite often lately with employers. Among the big practical takeaways is that, first, if an employer has sufficient documentation of the employee’s prior performance issues and the feedback that it has given to this employee, including a performance plan, the invocation of “disability” does not prevent the employer from moving forward with that plan. However, it could affect the timing of the plan. So it is something to consider.

Second, the employer should remember that it’s not required to provide any accommodation that the employer requests, it just needs to be a reasonable one. This is why the employer should engage in that interactive process we discussed and determine whether there is a reasonable accommodation other than leave — which, by the way, could be paid or unpaid. That may allow that employee to perform their essential job functions.

Third, if the employee requires performance management, that employee may no longer be qualified for the essential functions of their job. This is an important step in the disability accommodation process that occasionally gets missed. It is possible that the employee is no longer qualified, in which case no accommodation would need to be provided at all. But counsel should be sought out in all of these steps to ensure that the right legal guidance is being provided.

Fourth, and finally, an employer may request reasonable medical certification that describes the accommodations needed without requesting a specific diagnosis or medical condition, as well as the duration of the accommodations that are requested and how those accommodations could further support the employee’s condition.

JR: That’s helpful, Yeilee. It tells me that a lot of this is back to basics, focusing on the documentation, and understanding that not any accommodation is required; it’s a reasonable accommodation. And whether something’s a reasonable accommodation is going to depend on the circumstances, which is going to be extremely individualized. There is no such thing as “stress leave.” But there certainly could be legal protection for leaves taken under any number of federal and state statutes to address some underlying medical conditions that may create increased stress. So all of this requires a practical, prompt, patient, and legal-focused approach to avoid any knee-jerk reaction to how an employee describes a need for leave. It’s a function of good human communication between managers and employees.

Wrap-up

JR: Yeilee, thank you so much for this conversation. It was interesting and helpful. I know that this is something that is relevant on a day-to-day basis for most employers in this day and age. Thank you to those who have tuned into the Mintz On Air: Practical Policies podcast. Please feel free to visit us at Mintz.com for more content and commentary, or you can find us on Spotify. Thanks again.

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