Navigating ADA Compliance
There are several lessons for employers stemming from a recent Equal Employment Opportunity Commission civil suit in Louisiana that alleges a deckhand was fired illegally after he was medically cleared to return to work following treatment for “situational depression” through the company’s employee assistance plan, legal experts say.
“I don’t see this as breaking new ground,” says Julia E. Judish, special counsel at Pillsbury Winthrop Shaw Pittman in Washington, “but I do see it as a cautionary lesson for employers.” The case, she says, highlights the pitfalls employers should avoid when employees’ mental health status comes up against a company or its managers’ perceived or actual safety concerns.
The Sept. 21 suit filed in the U.S. District Court’s Eastern District of Louisiana alleges several Americans with Disabilities Act violations, including that the company, Gulf Logistics Operating Inc., of Larose, La., required the employee, Jason Gunderson, to have a medical exam before returning to work, and that they fired him even after he was medically cleared to return to work without restrictions. In other words, they discriminated against a perceived disability and had no basis for the firing. (Gulf Logistics operates a fleet of offshore workboats in the Gulf of Mexico oil and gas industry.)
In the suit, the EEOC said Gunderson had requested an EAP referral because he was having marital problems and wanted help to “cope with the stress created by the separation from his wife.” He was off the work vessel for five days to get treatment and after was given a medical release with no work restrictions by both the company doctor and his own therapist.
Two weeks after he returned to work, however, the company fired him. The suit alleges that the company’s action relied on the “biased perceptions of the vessel captains to determine that Jason Gunderson was unable to perform his duties or that he posed a threat to the safety of himself and to others due to his depression or adjustment disorder.” In addition, the EEOC wrote, no vessel captain “issued any warnings nor counseled Jason Gunderson regarding his inability to perform his duties, as Mr. Gunderson was able to perform the essential functions of his job upon his return to work without any restrictions.”
Although Gulf Logistic did not respond to repeated requests for comment, there are still potential lessons to be gleaned from the filing.
Judish says “employers need to understand . . . that you can violate the ADA even with employees who do not have a disability simply by asking them disability-related questions or requiring them to have a medical exam when you cannot show that the need for the medical exam is job-related and consistent with business and safety. It has to be based on reasonable beliefs and objective evidence.”
Debra Dyleski-Najjar, president and founder of the boutique law firm Najjar Employment Law Group in the Boston area, says providing job details is critical when seeking a medical evaluation: “When asking for a physician’s input, you must provide a clear understanding of what the job entails. I always send the physicians a letter, asking ‘Can the employee safely perform his or her job duties and, if no, is reasonable accommodation necessary?’ ”
In addition to some doctors not being given enough contextual information, many don’t understand how their opinions are going to be interpreted as biased or not under the law, so they are reluctant to take a stand, she says, adding that the EEOC provided guidance on the issue last year with the release of “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” In addition, it published “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work,” which is directed at mental health professionals but lays out an employer’s options on how to respond to such requests.