Quirky Question #271: We’ve Got a Worried Waiter

Question: We recently interviewed a candidate for a server position at our restaurant. During the interview, he informed us that he has an anxiety disorder, which causes him to have panic attacks out of the blue. Do we have to hire him? What if he had a panic attack in the middle of serving a customer?

Answer: By Jessica Linehan and Jessica Shiffman

Jessica Linehan

Jessica Linehan

Jessica Shiffman

Jessica Shiffman

We’re glad you came to us with this question, because this area of law can certainly be tricky.  Unfortunately, the answer is not straightforward.  However, at least one recent case suggests that his anxiety disorder should generally not be preclusive to his hiring, and you may in fact need to accommodate his panic attacks, by permitting him to take breaks when necessary, so long as those breaks don’t pose an undue hardship on your restaurant.

 In Barber v. Subway, 2015 WL 5530256 (M.D. Pa. 2015), Ms. Kiera Barber interviewed for a position as a sandwich artist.  During her interview, she advised the Subway shop owner that she shutterstock_256350988suffered from anxiety and that she may need to take a break if an “anxiety episode” occurred during her shift.  The owner responded that this wasn’t a problem, and asked Ms. Barber to submit medical documentation of her anxiety disorder.  She submitted documentation reflecting two diagnoses: anxiety and social phobia.  

Unfortunately, during her second week on the job, while she was preparing a sandwich for a customer, Ms. Barber suffered an anxiety attack.  In order to attempt to control her symptoms, she shutterstock_282632168went to the back of the store, where the owner allegedly found her, asked her what was wrong, and pressured her to return to work.  When Ms. Barber could not gain control of her symptoms, she requested permission to leave early.  The owner responded that he didn’t see any reason to keep training Ms. Barber if she was going to keep having anxiety attacks.  However, the parties dispute whether the owner intended this statement to mean that Ms. Barber was terminated, or rather that Ms. Barber should go home for the day (thereby granting Ms. Barber’s request for accommodation). Nonetheless, Ms. Barber did not return to work after that day, and neither party sought to communicate with the other thereafter.

Ms. Barber brought claims against Subway under the Americans with Disabilities Act (“ADA) and the Pennsylvania Human Relations Act (“PHRA”).  Ultimately, because of the genuine disputes of material fact surrounding the events of Ms. Barber’s last day and whether the owner intended to fire her, the court denied Subway’s motion for summary judgment.  However, the court did indicate that Ms. Barber’s version of the facts would justify a decision that (1) Subway failed to reasonably accommodate Ms. Barber’s request for a break “in the immediate wake of an anxiety attack”, and (2) Subway terminated Ms. Barber directly in response to her request for an accommodation.

Even though summary judgment was not granted because of the existing dispute of material facts, the court’s decision is illuminating, because it suggests that Subway did have an obligation to accommodate Ms. Barber’s request for a break to recover from her anxiety attack while preparing a sandwich for a customer.  Thus, though it may be counter-intuitive, an employer may have an obligation to accommodate disability-related symptoms by permitting breaks, even when the employee is a front-of-house or external-facing worker. There are many jobs where one might think that the ability to provide constant customer service may be considered an “essential function” or requirement of the position – servers, hosts and hostesses, receptionists, cashiers, and greeters,  for example, in addition to the sandwich artist. But the court’s decision in Barber indicates otherwise: employers may be required to accommodate even these external facing employees with unplanned breaks in relation to known disabilities. shutterstock_265750175

 Keep in mind, however, that this doesn’t necessarily mean all employees with disabilities are entitled to unplanned breaks under the ADA, because employers still are only obligated to provide “reasonable accommodations” that won’t arise to an “undue hardship” for the employer. Thus, the circumstances of each case will need to be considered. For example, a sole store employee manning a cash register may not be as readily accommodated as a server at restaurant with a number of servers capable of filling in while one is on a break.  

 These considerations are very fact specific, and require a high level of analysis to determine whether (1) an accommodation is required, (2) an accommodation is reasonable, and (3) the accommodation poses undue hardship on the company. We encourage you to contact us with any questions.



Jessica Linehan

Jessica is a Partner in the Labor and Employment group. She advises clients on a wide variety of matters including employment agreements, non-competition issues, wage and hour compliance, reasonable accommodation under state law and the ADA, and employee discipline and termination.

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