By Frank Ferreri, October 17, 2023

Although the Rehabilitation Act just turned 50, and the ADA is in its 30-something stage of life, employers – Federal and otherwise – continue to struggle with accommodations, particularly for employees whose disabilities aren’t visible.

A couple of weeks back, Fortune ran a story reporting that only 41 percent of neurodivergent employees said they received a workplace accommodation, with another 6.5 percent saying they were denied accommodations after requesting them.

In the context of Federal employment, the recent case of Harp v. Garland, 2023 WL 6380019 (W.D. Okla. September 29, 2023), provides an example of an agency failing to follow the law on accommodating an employee with an invisible disability.

According to a Department of Justice employee, the agency violated Section 501 of the Rehabilitation Act when it denied her request for a reasonable accommodation.

The employee alleged she asked the agency for two hours off work each week to attend therapy for her mental health condition. In response, the agency contended that the employee was able to perform the essential functions of her job without an accommodation.

At trial, the jury returned a verdict in the employee’s favor and awarded her compensatory damages of $250,000.

The DOJ entered a Post-Trial Motion for Judgment as a Matter of Law (Note: Under the Federal Rules of Civil Procedure, a party can file this kind of motion within 28 days after entry of judgment, and a court may: 1) allow judgment on the verdict; 2) order a new trial; or 3) direct the entry of judgment as a matter of law.)

To show that an agency came up short in its accommodation responsibilities under the Rehab Act, an employee must show:

  • She had a disability.
  • She was an otherwise qualified individual.
  • She requested a plausibly reasonable accommodation from the agency for her disability.
  • The agency failed to provide her with her requested accommodation or any other reasonable accommodation.

Although it noted the employee performed her job duties “adequately” immediately following the denial of her request for an accommodation, in upholding the trial court’s ruling in the employee’s favor, the District Court highlighted that:

  • The employee testified that in the absence of her treatment, her mental state deteriorated to the point that she was unable to work.
  • The employee testified that she believed the denial of her requests to attend her counseling sessions caused her to be unable to work and that, if she had been able to continue her treatment, her mental condition would have improved.

“Viewing this evidence in the light most favorable to [the employee,] a reasonable jury could have concluded that allowing [the employee] to take leave to attend counseling sessions was an accommodation that would have enabled [the employee] to perform the essential functions of her job,” the District Court wrote.

So, what can an agency learn from a case like this? It’s no secret there has been a mental health crisis in workplaces across the country for a while and that since the pandemic, the numbers have shown it’s not going away anytime soon.

Rather than end up in court or dealing with the EEOC, a better strategy might be to hone in on the tips FELTG Training Director Dan Gephart offered in the thick of the pandemic:

  • Develop clear expectations and agreed upon solutions to meet the goals and expectations of the job.
  • Communicate in a clear and concise manner, especially the policies and procedures that may impact their performance.
  • Provide respectful, but direct feedback. Also, ask the employee how they prefer to receive the feedback.
  • Avoid judgments or assumptions.
  • Avoid using language that promotes stigma.

Also, as this case illustrates, just because the employee can get a job done “adequately” doesn’t end the story.

The employee’s condition deteriorated without the accommodation, something that most employers would be sensitive to regarding a visible, physical impairment.

It sounds basic, but it’s worth remembering that the law doesn’t make a difference between physical or mental disabilities when it comes to employers’ accommodation duties.

If an employee needs time off to attend mental health counseling sessions, there’s a good case that it will be a request for reasonable accommodation under the Rehabilitation Act, and an agency would make a smart bet to treat it as such. Info@FELTG.com

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