When Disability Issues are Not Handled with Care

It is a typical story: A company’s IT director had a mixed performance record during her 17-year tenure. Unbeknownst to the company, she had been intermittently treated for anxiety. The company’s operations, and particularly its IT systems, were significantly damaged in Hurricane Sandy. The IT director, however, took vacation days and worked only remotely in the weeks following. The company’s upper management, as the days passed, became troubled about the employee’s lack of responsiveness.

Three weeks later, the IT director spoke with upper management about her attendance. The contents of that conversation are disputed. The director says she told her superiors that she was “completely overwhelmed” by anxiety and stress post-hurricane, and needed time off to deal with her situation.  Upper management says that the director never told them about any anxiety or stress disorder, only that she needed time off to be with her mom, who had lost her house. After 10 days passed, the IT director still had not come to the office, and was terminated.

The IT director sued for disability discrimination. Although the lower court sided with the company, and granted summary judgment dismissal. However, in a January 10, 2017 decision entitled Chernov v. Securities Training Corp., the New York Appellate Division, First Department,  reversed, finding that there were issues of fact about whether the company reasonably should have known that the director was suffering from a disabling anxiety condition, and whether that anxiety condition caused any of her performance issues. The company now potentially faces hundreds of thousands of damages, attorney’s fees, and the costs of a trial.

There are important lessons to be learned here. The first is that an employee does not need to use “magic words” in New York to trigger an employer’s obligation to offer a reasonable accommodation to avoid disability discrimination.  All an employee has to do is say something – anything – that would raise a question in the employer’s mind as to the possibility of a disability. Once this question is raised – such as here where the IT director said that she was completely overwhelmed by anxiety and stress – the employer must initiate an interactive process with the employee to determine whether a qualifying disability exists and what actions the employer needs to take to reasonably accommodate the employee’s disability. Thus, HR staff and supervisors need to be trained on how to recognize and deal with an employee’s disability triggers.

The second lesson to be learned is the importance of documentation. The employer’s liability in the above fact pattern turns largely on exactly what was said by the IT director regarding the need for time off. Written, contemporaneous documentation for the employee’s file goes a long way towards avoiding these disputes.

Finally, the fact pattern demonstrates the importance of quickly acting when an employee’s performance issues first surface. There had been performance issues long before Hurricane Sandy; had they been acted upon and appropriately dealt with, at the time they occurred, the ability of the employee to draw a link between her purported disability and the employer’s actions would have been significantly hampered.

Please contact Roy Breitenbach at (516)382-2272 for additional information.

~Submitted by Roy Breitenbach

Categories: Employment Law