Employee mental health lawsuits on the rise nationally
Phoenix Business Journal - by Stephanie Balzer The Business Journal
An employee violently loses his temper then later apologizes to his boss, claiming he's seeking psychiatric help.
A woman who is chronically depressed has depleted her sick and vacation days, but still is missing work.
At the heart of both issues is a hot topic in employment law: mental health and the workplace.
Attorneys say employers are seeing more and more lawsuits by workers claiming they need special treatment for their mental disabilities.
While everyone agrees that workplace discrimination in any form is unacceptable, some say these cases are getting out of control and that people are suing simply because they are overly stressed.
"There's no doubt there's been a dramatic upswing in disability claims arising out of alleged mental or emotional problems," said Joe Clees, labor and employment attorney in the Phoenix office of Bryan Cave LLP.
While statistics for Maricopa County are not available, the federal Equal Employment Opportunity Commission estimates that nationally, claims of emotional or psychiatric impairments filed under the Americans with Disabilities Act are increasing. In 1997, 14 percent of the ADA cases were claiming mental impairment.
The debate is over what constitutes a disability in the mental health arena and what should be done about the rise in lawsuits.
The cases are being filed under the ADA, a 1990 federal law that assures those with physical and mental disabilities will not be discriminated against in the workplace.
The difficulty, many attorneys say, is that unlike physical ailments, mental problems are less tangible and harder to define. As a result, the ADA laws are broadening their reach.
"There are some real difficulties, obviously, in determining if certain mental conditions are the types of things the ADA was intended to cover," said Larry Rosenfeld, a partner with Phoenix law firm O'Connor Cavanagh.
Increasingly, attorneys are getting cases in which someone wants special working conditions -- a transfer to a different department, abbreviated work hours or a new supervisor -- because they are stressed.
In general, attorneys say, courts aren't buying the garden-variety stress argument. But not every case is that straightforward.
Take drug and alcohol abuse, said Steve Biddle, partner with Phoenix law firm Streich Lang PA. Under the federal law, if someone is recovering from a drug or alcohol addiction, it is considered a mental disability and employers are required to make reasonable accommodations to allow for recovery.
But current users are not considered disabled. However, there's no definition as to what constitutes a "current" user. To some it could be a person who used last week; to others, a drink six months ago is current use.
"That's a question that's real hot," Biddle said.
A more extreme example is the worker who becomes violent yet is diagnosed with having a chemical imbalance that causes the behavior. Employers see that as a Catch-22: If they fire the employee, they run the risk of being sued for discrimination. But if they retain the person, co-workers or customers could be in danger.
"It puts the employer on the horns of a dilemma," Rosenfeld said. In general, you don't have to tolerate behavior from a disabled person that you wouldn't from an abled, Rosenfeld said.
According to Biddle: "Cases have been going both ways, but the trend now is companies can enforce attendance policies as long as they aren't picking on the person."
Attorneys at the U.S. Equal Employment Opportunity Commission agree.
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