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Stress leave: How much must you accommodate?

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

Do any of these situations sound familiar?

  • At Aon Corp., which lost many workers in the World Trade Center attack, groups of employees continue to ask for medical leave to take time off for emotional health.
  • Merrill Lynch continues to log a dramatic increase in the number of employees wanting to telecommute, at least 1,700 workers from two business units at last count.

If you're still wrestling with these kinds of sticky issues, you're not alone. Most employers have met post-Sept. 11 employee requests with patience and understanding. But some worry that if the economic slump continues, they can't be so accommodating. At the same time, experts caution that other problems can surface months later, including panic attacks, depression or substance abuse. (See box, below left.)

It's inevitable that some of these disputes will wind up in court. That leads to an important question: How much so-called "stress leave" must you reasonably accommodate?

Stress alone isn't protected

Ordinarily, a garden-variety claim of "job stress" alone won't excuse an employee from following your attendance or productivity policies, says Stephen E. Zweig, partner, Benetar Bernstein Schair & Stein in New York.

But if a worker ties his claim to a physician-diagnosed disorder like post-traumatic stress disorder (PTSD), it may be a different story. Reason: Linking stress claims to PTSD could cause the worker to become protected under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). Also, state and local disability discrimination laws, along with workers' comp issues, may add to the situation.

To protect your firm, Zweig says:

  • Expect that PTSD would likely qualify as a "serious health condition" under the FMLA, even though short-term conditions like stress, anxiety and depression might not.
  • Ask the worker, during his leave, for ongoing information about his condition and when he expects to return.
  • Be aware of the "key employee" rules. Specifically, if someone needing leave is a key employee, that is, among the company's top 10 percent of employees in compensation, and insists on taking FMLA leave even after being told it would cause substantial business problems, you can replace him. You must be able to document your case.
  • Understand that PTSD may or may not be considered a protected disability under the ADA. Even if it does qualify, you don't have to lower your performance standards just to enable the worker to perform essential functions of a job.

How much is too much?

So where can you draw the line when an employee pushes your leave rules to the limit?

Advice: Take your cue from a recent case that established a rule of thumb. (Powers v. Polygram Holding Inc., 40 ESupp. 2d 195, S.D.N.Y., 1999) It said that leaves of absence can be unreasonable accommodations for any of these reasons:

  • The leave was extraordinarily long, i.e., more than one year.
  • Absences were so erratic that the employer didn't know from one day to the next whether the worker would be reporting.
  • It's clear that even when the employee returns following a leave, he'd still be unable to perform the essential job duties of the job.
  • An employee who was primarily hired to perform certain tasks by a deadline wouldn't be able to do so if given the leave.

Best bet: Simple work-schedule adjustments, reduced hours or short-term leaves can often do the trick in helping employees manage new stresses.

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