June 2015
By: Walter J. Liszka, Esq.
There are a vast number of employers
who have had to deal with employee issues related, in some way, to an “employee
disability”. There are very few
situations arising under a workman’s compensation scenario that do not require the
employer to make “reasonable accommodation” to an individual who is returning
to work from a workman’s comp injury and needs “work hardening”. That is just one of the few issues that
arises and exposes an employer to the breadth of the Americans with
Disabilities Act (ADA).
According to the Diagnostic and Statistical Manual of Mental Disorders [DSM-5(2013)], Social Anxiety Disorder is a “marked and persistent fear of social or performance situations in which a person is exposed to unfamiliar people or scrutiny of others”. The “avoidance and/or anxious participation and/or distress” of being placed in a feared social performance situation affects the individual and causes that person’s normal routine to be impacted or disrupted from their normal occupational function. Hence, Jacob’s concern about “front counter customer service”.
None of the three (3) supervisors
acted on Jacobs' request and, in fact, indicated that they had no
authority to
act on this matter and that the authority solely resided with the Chief
County Clerk, Brenda Tucker, who was then on vacation and who had hired
Jacobs and
promoted her to Deputy Clerk. It should
be noted that at no time during the term of her employment was Jacobs
given any
disciplinary action, performance review nor was she told that her job
performance was below standard. When Ms.
Tucker returned from her vacation, she and the three (3) supervisors met
with
Jacobs, on or about September 29, 2009, and Tucker informed Jacobs that
she was
being terminated because she was “not getting it” and that the county
had “no
place to use Jacobs' services”. This
communication was made to Jacobs even though she had never been written
up for
any disciplinary infraction or performance issue nor did her personnel
file
indicate any problems with her performance.
While this type of decision gives a
broad expanse to ADA coverage, and a potential of “great exposure” for
any
employer (how many jobs do not involve exposure to other people or
scrutiny by
others), it should also not go unnoticed that a factor in the Fourth
Circuit
Court of Appeals decision was their belief that the Clerk’s Office was
attempting to create “pretext” to justify their action in terminating
Jacobs
(i.e. create a “solid discipline basis to terminate”). As previously
stated, during Jacobs' employment, there were no disciplinary actions
showing lack of performance,
nor, for that matter, any notes in her personnel file that established
performance related problems. In point
of fact, Ms. Tucker had promoted Jacobs after a month on the job! The
fact that the county attempted to use
performance related issues as a basis for the termination was probably a
major
factor in this case being decided in Jacobs' favor.
The author is aware of very few
employment locations in which individuals are not required to interact with
fellow employees or clients and this decision creates a fairly wide chasm for
employer exposure. Social Anxiety Disorder is not rare and if faced with the issue, great care must be taken to avoid the
“pitfalls of liability”. Also, please note that, as in any situation dealing
with employees, accurate and complete performance records are a must,
especially if a person is, in fact, not doing all required job tasks. Remember, to be entitled to a “reasonable
accommodation” under the ADA, the individual must be able to perform “essential
job duties”.
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