I have encountered a unique situation in my workplace. I’m not asking for legal advice, as I am a by-stander to a situation, neither the disabled person nor a manager of any breed.
A salaried technical employee was informed that he would be required to carry the company cell phone and be available 24/7 one week of every four. He complained it was unfair that he wasn’t getting paid extra for being on call, but took his concerns no further.
A year passes. Average on-call call volume is one call every four weeks (cumulative, not per person) and the average call is probably an hour in length.
Let me repeat for emphasis: being on-call costs a technician, on average, 15 minutes of their time per week.
The same salaried technical employee is then informed that in addition to one week out of four on call, during one week out of four he will be required to carry a different cell phone. This phone will only ring in emergencies in which the person carrying the original cell phone is incapable of answering, for example, due to phone malfunctions.
Two days later, this employee calls off sick.
On the third day, the company psychologist writes a letter excusing the individual from work on the basis of bi-polar disorder. The company psychologist indicates that the employee could probably deal with things again if the employee could be excused from on-call duty. The employer is as fond of this as a lead zeppelin, and believes that failure to perform on-call is failure to perform the job and grounds for dismissal.
Now, I have no stake in how this turns out. But it occurred to me that some of the HR-ly or lawyerly types on here might be able to tell me if there is precedent for any of this as an ADA claim.
Is bipolar disorder legitimate as a disability under the ADA?
Is “the employee doesn’t have to perform on-call duties” a reasonable accomodation as defined by the ADA for some persons with bipolar disorder?
Has anyone ever seen a situation like this that I might be able to pull legal records on?
What does “The company psychologist indicates that the employee could probably deal with things again if the employee could be excused from on-call duty.” mean?
He could probably do his job if he were excused from doing it? :dubious:
Let me rephrase for clarity:
“This employee’s condition would be manageable if he were asked to work for 40 scheduled hours per week. However, his condition becomes unmanageable if he is asked to work those same hours plus carry a cellular phone during his off hours during one of four weeks, and be asked to attend emergency calls that come in on that cellular phone.”
Remember, that phone typically does not ring for a month at a time. When it does ring, the average resolution time for the call is around 1 hour.
Asking somebody to be on call 24/7 when they’re contracted for a 40 hour week sounds like they’re begging for a constructive-dismissal accusation.
HR type checking in.
GorillaMan, I noticed your UK location. In the US, “salaried” as in the OP, which I’m taking to mean Exempt from the Fair Labor Standards Act, means that overtime doesn’t need to be compensated (or limited). US labor situation on this topic is very different from UK and many other countries. Requiring on call work at no additional pay is fine, unless there is a union contract to the contrary.
Back to the ADA topic. An interesting aspect of ADA cases is they are each to be evaluated on their individual merits (called the interactive process). The first step is to determine if the individual’s condition substantially limits a major life function to meet the law’s definition of disabled. So there is no blanket statement as to whether bipolar or any other condition would be a disability, it is based on that individual. That said, it seems reasonable that in some cases bipolar disorder would constitute a disability.
Next is developing a reasonable accommodation. The employee and employer and doctors should be involved here. The employee can suggest “a reasonable accommodation would be for me not to have to be on call.” The employer can argue that this is not reasonable. If this is the only employee who can do this job, such as turn off the nuclear reactor in an emergency, then maybe not being on call is not reasonable. The possibility that other employees might perceive it as unfair if this employee doesn’t pull their shift on call is less likely to hold water as unreasonable. Maybe there is a compromise where the individual doesn’t do night call, but daytime call on holidays. The interactive process is back and forth to find out if there is something that works for the employee and the employer. If there is something reasonable, the employer has to do it. If there is nothing reasonable, the employer is not obligated to do something unreasonable. All this determined to the nth degree by lawyers in messy cases.
It is fairly common for ADA accommodations to relate to employees with health conditions needing to maintain a regular schedule with daytime work and nighttime sleep.
The overall message is that this is not atypical of requests for accommodation under the ADA, and each one is resolved individually on its own merits.
A good site for ADA information is the Job Accommodation Network
From an HR perspective one of the most important things the employer can do to prevent ADA requests from heading in the direction of a messy lawsuit is to be open to and aware of the “interactive process” aspect of the ADA legislation. Employers who approach that with the attitude “surely this is all a bunch of hooey” are ripe for discrimination lawsuits–expensive to defend even if the employer eventually prevails.
Okay. It shall be fascinating to watch this play out…
The disabled person has been excused for a 2-month leave of absence, beginning yesterday.
All over what amounts to working what amounts to 3.25 hours per year. The leave of absence will cause 106 times as many lost hours of labor from this worker than the company was asking for per year, with a worker less than 25 years from retrement.
Wow. Makes me seriously glad I don’t own a business.
I’ll just repeat what Harriet said so well (I was an HR consultant for 25 years.) Again, we’re assuming this is a U.S.-based situation, and the company is private (different rules apply to government facilities, for instance.)
(1) To be classified as a disability, the condition must “substantially limit a major life function.” Whether bi-polarity does that is questionable, certainly in the individual’s case. Major life functions include things like walking, talking, sight, hearing, eating, breathing. Carpal tunnel syndrome, for example, was recently ruled not disabling because ability to type is not a “major life function.”
My wild-arsed guess is that bipolarity does NOT inhibit major life functions if the person takes medications, but I haven’t looked up any past cases.
(2) If the condition is indeed classified as a disability, there there is some duty (or duties) that the employee cannot perform. The next question (Harriet didn’t address this) is whether that is an essential job responsibility. If the disability prevents the employee from doing some trivial side function, the employer can’t dismiss the employee (for example.) So, in this case, the employer would need to prove that being on call 24/7 during a certain time period is an “essential job responsibility” – for instance, that the job cannot be performed without that particular task, or that there is serious adverse impact on the company if that task is not performed.
(3) If the condition is classified as a disability, and the duty is an “essential job responsibility”, then employer is required to make “reasonable accomodation.” What’s reasonable depends on the individual circumstances (and includes the cost of accommodation.) An obvious example is providing ramps for individuals in wheelchairs: if the cost is reasonable, the employer must do it. If the cost is not reasonable, the employer is not obliged to do anything, and the employee can’t do the job and can be fired.
I have to say, I’m a bit puzzled as to what “reasonable accomodation” is being asked for in this case. The person can either take the calls or he can’t, it’s not like a special Braille-phone is required (a reasonable accomodation for a blind person.)
So, overall, it looks to me as if the battle here will be over whether being on call is an essential job responsability…
Yes, big company in US. Correct assumptions there.
So far as I can discern, the accomodation being asked for is “take away responsibility for carrying on-call cell phone during hours outside of scheduled 40/hr/week time at desk”.
However, the company psychologist may be phrasing things differently.
When you say “essential job responsibility” does the “essential” mean “essential that all employees do it” or “essential that some employees do it” ?
If the latter, would that mean that a duty is an essential job responsibility if you have one technician, but if you have two or more, it’s no longer essential?
As a lawyer with bipolar disorder who is currently receiving disability benefits because I’m unable to do my regular job:
Probably the person has bipolar disorder, unless the counselor is totally disreputable.
That said, I think the employee is using his illness as an excuse to get off of a duty he considers to be a nuisance.
There’s a very small chance it’s legitimate. I know that when I was suffering most from my illness, the duties I had at work that gave me the most trouble were the ones I couldn’t anticipate ahead of time and schedule. If I could regiment my day carefully, I could drag myself through it. One little crisis, and I was a basket case. Imagining a crisis was enough to give me a full-blown anxiety attack.
Maybe this guy is going through that. But I doubt it. I was acutely suicidal, very unstable, and my problems showed in other areas of my work at that time. It doesn’t sound like you suspect this of him.
What I think happened here is that he told the counselor a version of what I just said, only he’s exaggerating or lying to get a free pass.
Legally speaking, if there are other employees who can cover those shifts for him, and it’s not an “unreasonable hardship” on the employer, the employer is required to accommodate him.
I think it stinks that slackers abuse their privileges under the law.
If you’re on the right meds, it probably doesn’t inhibit major life functions. If. Getting on the exact right dose of exactly the right meds so that there are never any more symptoms that interfere with daily life is the exception, not the rule, for bipolar patients. Even on the best possible meds, most bipolar patients will continue to suffer some impairment at some times. And, unfortunately, there is a significant minority of bipolar sufferers who do not respond to drug therapy. (My source is Goodwin & Jamison’s book, Manic-Depressive Illness, as support for this assertion; it’s the bible on bipolar disorder. Sorry, I don’t have online cites.)
There were years during which I was diagnosed bipolar, but doctors couldn’t find meds that worked for me. During that time, it was pretty much impossible for me to perform basic life functions (couldn’t get out of bed, couldn’t dress myself, couldn’t get myself to work, couldn’t interact with people in a way that made sense, couldn’t write coherently, etc.). Many days it was impossible for me to read. (I was once actually on a conference call with a client and a partner in my firm concerning a contract. When asked to find a term in the contract, I literally could not comprehend the words, no matter how hard I tried.)
That was when I was depressed. When I was manic, I sometimes saw things that weren’t there. Like Dick Cheney following me around town in a maroon SUV. Those were also the days when I would drop $500 to own every shade of blue eyeshadow that I could find at Neiman Marcus. Oh, and spend 8 hours masturbating in my office because it seemed reasonable, since I was (again) physically unable to concentrate enough to read.
BTW, the definition of “major life functions,” legally speaking, is slightly broader than a list of the basic bodily functions, but does not encompass specialized skills like typing. That list would include the ability to communicate, verbally and in writing, in a consistently coherent manner, for example, and other basic general skills required for any work environment. Lack of basic rational judgment would, I’m almost positive, also qualify. Unfortunately, as there are no specific cases on these points, we can’t be totally sure.
Nevertheless, I can say that I have had employers consider me disabled under the ADA with those symptoms. Since those employers were lawyers, I consider that one of the best available indicators of how a court would find on the issue.
My specific point is, I think you’re significantly underestimating the potential of bipolar disorder to render one disabled for the purposes of the ADA.
It isn’t just 3.25 hours per year of work - it is 2190 hours of a sword of Damocles hanging over your head. I don’t think you really understand how disruptive on-call duty can be. Even if you don’t get called out at all, you still have to schedule your life around the possibility of being called out. That means no weekend trips, no incommunicado time whatsoever… the stress adds up. It gets even more stressful when you’re a new employee and you may not have all the answers the caller wants.
On-call duty has a definite effect on an employee’s quality of life, an effect that should not be discounted. On-call employees deserve compensation.
I’m 99.9% sure that he is complaining of more significant issues than the “on call” time if he’s been given 2 months off. Assuming that the counselor who authorized this on behalf of the company is reputable, there’s a lot more going on than you know.
For all you know, this guy has serious ongoing issues and the “on call” controversy is simply the straw that broke the camel’s back. You are not privy to all the issues of his employment, or his mental health history.
It would be kind of you to give him the benefit of the doubt here. Bipolar illness can be quite devastating.
Yes, I’m sorry, I didn’t mean to imply otherwise. There’s no exhaustive list, and I should have included things like caring for oneself, learning, reading, etc.
And an impairment that is controlled is still included – for example, epilepsy can be controlled by medication, but is still a disability. So my wild-arsed guess in the prior post was incorrect: merely controlling a disease by medication would not mean it is not a disabling. My apologies.
Sorry to be unclear, the law means that it is essential to that particular job.
So, for instance, if a company wants to hire a salesperson to work in Japan, then both sales experience and the ability to speak fluent Japanese would be essential job functions. That doesn’t mean every employee must speak fluent Japanese, only people holding that particular sales job. If a blind person applied for the job who did not speak fluent Japanese, the company could refuse to hire them and not run afoul of the rules that prohibit discrimination against disabled persons.
Employers must make decisions about persons with disabilities solely on their ability to perform essential job functions.
So, in your case, it’s still what I said before: is this 24/7 availability an essential job function? If not, then the guy’s inability to do it cannot result in him being fired, they just need to reschedule and give the task to others. If so, can it reasonably be done by others without inconvenience (i.e., is there reasonable accomodation)? If there’s no reasonable accomodation, then they can fire him for being incapable of performing essential job duties.
“if there are other employees who can cover those shifts for him, and it’s not an “unreasonable hardship” on the employer”
You mean that if the other employees ***can * ** do his job for him, they ***must * ** do so? :dubious:
Good point, C K Dexter Haven, on the essential function piece. I’m not really clear on how the law plays out if it isn’t essential. After all, the calls do need to be covered, but not by him. And he’s not the only person who can answer them. So whether it’s as a nonessential function or as an accommodation, it seems like other employees could be required to answer these calls, after all of the facts of the individual case are examined. Would it be accurate to say that removing a non-essential function is by definition reasonable?
So to ouryL actually, yes, other employees may need to cover this. If the consequence for the healthy employees is an additional 3.25 (divided by 3 employees) hours of work, and the consequence for the disabled employee is that his condition becomes unmanageable to the extent he can’t perform basic life functions, it’s not unreasonable for the employer to have that expectation. The manager could say something like “It is an individual situation and I need you to trust that if you brought me a comparable situation that applied to you, the company would make the necessary accommodation for you to do your job.” Because needless to say, I hope, the manager is not going to go into medical details w/ the coworkers.
(I am not unsympathetic to the point that it’s not just 3.25 hours we’re talking about here, but that applies equally to all parties).
Perhaps, in the sake of teamwork, the disabled employee could take on another duty instead of call that he is able to handle to balance the workload. Or, I don’t think there’s anything to prevent the employer from creating a new position with call and paying slightly more for it, or hiring a contractor to just do the call portion, etc. For a small company this may not be reasonable. For a large company that restructures positions all the time, it could be perfectly reasonable.
Point being is that the ADA is a law that protects people with disabilities from being fired when a reasonable accommodation would allow them to perform the job.
You are not kidding about that. I am Bipolar Type I also and no one should underestimate how disabling a disorder that it can be. Until I was effectively treated, I was completely disfunctional in all areas of life for many periods. People understand that something like cancer or kidney disease can be debilitating to work performance but may be hesitant to understand the same thing about Bipolar disorder. Bipolar has physical symptoms like other diseases such as wild energy fluctuations and shakiness, but you also lose your mind and “the self”, whatever that is, along with it. Also, Bipolar disorder has a higher mortality rate than many of the so-called serious physical disorders. It is not something that should ever be blown off as some convienent “mental problem”.
Q.N. Jones ,
Thank you for your post, and for sharing your story. I now have a subtantially clearer understanding of this disorder than I did previously.
In particular, having witnessed this employee’s work, I have seen him seemingly randomly lose control of the ability to read, or even listen to another and then later recall what was written or said unto him.
This makes perfect sense. All this time I had been assuming laziness on the issue of documenting and recalling information, when it may have in fact been a complete inability to fully cognitively process external input into internally meaningful data.
For clarity,
- Don’t know about acutely suicidal
- My observation says “unstable” certainly and possibly what you would consider “very unstable”.
- Yes, there are problems showing in other areas of work.
For clarity, I meant to put “occasional” somewhere in the final sentence of that post.
All this time I had been assuming laziness on the issue of documenting and recalling information, when it may have in fact been an occasional complete inability to fully cognitively process external input into internally meaningful data.
Johnathan Woodall, I’m glad to know that my posts were helpful to you in understanding the situation a little better.
Based on my own experience, I’d say that if your co-worker is exhibiting the symptoms you describe, he is probably battling a problem that is much, much worse than you realize. It’s amazing how incapacitated someone can be and yet still be able to hide it from friends and co-workers.
If you want to do something helpful for your co-worker, probably the most helpful thing would be to try to help stop the unkind gossip about him. It sounds like his problem is both very legitimate and very severe. Fostering understanding in your workplace, and helping to put an end to the unpleasant speculation about on-call duties causing him to snap, would be a kind thing to do.
I’m happy to answer any other questions you might have as best I can.
Best wishes, Laura