Seasonal Affect Disorder, Quirky Question # 119

Quirky Question # 119:

One of our employees, who works in an interior cubicle, has advised us that she is suffering from Seasonal Affective Disorder (or SAD).  She has asked us to move her into an office with windows.  This hardly seems fair to our other employees.  Some have greater seniority.  Others have positions that are at substantially greater pay grades, with far significant responsibilities.  Yet very few of these employees have offices with windows.  What are our legal obligations?  Do we have to provide this employee with a window office?

Dorsey’s Analysis:

As you undoubtedly are aware, the first question bearing upon your analysis is whether your employee is a qualified individual suffering from a disability, as defined by the Americans With Disabilities Act (ADA).  We’ll revisit that issue in a moment, but even if you assume that your employee’s mental impairment, Seasonal Affective Disorder (SAD), constitutes a disability under the ADA, the next question is whether your employee can perform the essential functions of her job with a reasonable accommodation.  Assuming that she could perform the job, the third question is whether accommodating your employee suffering from SAD would cause your company an “undue hardship.” Your analysis of each of these issues should resolve the question you posed.

You have not provided much information regarding your employee or the specific job she performs. But, I infer from your question that you consider her to be a qualified individual. My inference is based largely on the fact that you have not referenced any performance deficiencies or described other inadequacies about her job qualifications. You have not stated how long your employee has worked for you, but note that the longer she has been employed, the easier it would be for her to demonstrate that she is qualified for the job, a fact your company recognized by continuing her employment. Of course, if her periodic performance reviews have been enthusiastic and complimentary, it will be even easier for her to demonstrate that she has the requisite job qualifications for continued employment.

The next question is whether an employee with Seasonal Affective Disorder has a disability as that term is defined under the ADA. SAD is a form of depression. Like other mental disabilities, however, individuals may experience it in dramatically different ways. It is unclear from the facts included in your question whether your employee is experiencing severe symptoms or something far less significant. Does the disability affect her ability to perform a major life function? Again, it is difficult to assess that issue based on the information you provided. But, a few of the questions you may want to explore include: how long has she suffered from SAD; what are the symptoms she experiences; is she on medication to address the symptoms; how long does the depression last; are there any remedies for the depression short of exposure to sunlight; is she under the care of a psychiatrist, psychologist, or other mental health provider; could the mental health care provider furnish his or her assessment of your employee, her condition, and the appropriate remedy; etc.

For the purposes of exploring this issue, I will assume that your employee has a cognizable disability under the ADA that affects a major life function – her ability to work. Assuming that to be true, the next issue is whether your company can accommodate her disability without experiencing an undue hardship. Before turning to that inquiry, let me emphasize that determining an appropriate accommodation requires an interactive process and dialogue with the affected employee. Keep in mind that there are no magic words that must be used. As you described, your employee advised you that she was suffering from SAD and proposed a solution that she felt would help her address that impairment – working in an office with exterior windows. An employee’s proposed accommodation is not the only accommodation that your company may wish to consider; your organization may, with input from your employee and her medical advisors (if any), as well as with input and guidance from knowledgeable individuals within your company, consider other equally effective accommodations for the disability your employee is suffering. By “knowledgeable” company representatives, I am referring to company medical personnel, HR representatives (who may know the types of accommodations your company has extended to other employees experiencing depression), and the employee’s managers (who are aware of how SAD has been affecting your employee).

It could be that the best (and most reasonable) accommodation would be to provide this employee an exterior office with direct sunlight, but there may be other equally effective solutions. For example, depending on the nature and severity of your employee’s SAD-based depression, perhaps the problem could be addressed by providing her periodic breaks in which she is permitted to spend time outside your building. Alternatively, she may be to address her depression symptoms by spending part of the day in a common area such as a cafeteria where there is natural sunlight. These and other ideas may be worth exploring with your employee and her health care providers.

Let’s assume, however, that the only accommodation that would adequately address your employee’s illness and symptoms is moving her from a cubicle to an exterior office. If that is true, you need to return to the question of whether this accommodation constitutes an undue hardship. Typically, “undue hardship” inquiries revolve around how much money a company must expend to accommodate an individual. That cost needs to be evaluated in the context of various other factors – how many employees are working at the company; what are the company’s revenues; is the company operating profitability; what impact would the expense of the accommodation have on the company’s profitability; and similar inquiries. In your question, however, you raised a couple of non-monetary considerations that you felt would be problematic for your company. Specifically, you noted that providing this employee an office with exterior windows could create resentment by employees who had greater seniority or employees who held senior positions with greater responsibility yet who also were relegated to interior, windowless offices. You raised the issue of whether this would “fair” to your other employees.

In my view, you may be underestimating the compassion of your other employees. Assuming that the employee seeking the accommodation is a hard worker and valued contributor to your organization, you may find that your other employees are less concerned about the accommodation she is seeking than you may think. At a minimum, you need to explore this issue in an appropriate way. I think it would ill advised for you to make an argument that your company could not accommodate her desire for a reasonable accommodation based solely on your assumption about the impact such an accommodation might have on the attitudes of her co-workers or the morale of the workplace. You will need more compelling evidence of undue hardship than your somewhat speculative assumptions about how others might react.

A recent case that sheds some light on similar issues is the case of Eckstrand v. School District of Sommerset, an October 2009 decision from the Seventh Circuit Court of Appeals. In that case, a lower school teacher suffering from SAD requested the school administrators to move her from an interior classroom to a classroom with exterior windows so she could experience natural sunlight. She explained that she suffered from SAD and that the condition was debilitating. Her explanations were supported by medical evidence.

Despite the fact that there were two classrooms, each with exterior windows, into which her class could have been moved, the school district was unwilling to offer her this accommodation. One classroom was occupied but the teacher in that room stated that she would be willing to switch rooms. The other classroom was unoccupied.

Eckstrand became increasingly depressed and repeatedly requested the school district to accommodate her. Although the school addressed some other, minor issues that Eckstrand stated exacerbated her condition, the administrators still were unwilling to grant the primary accommodation the teacher sought. Within a few months, Eckstrand had to take medical leave.

As described in the opinion, her medical condition was extremely serious. She “suffered from a significant inability to concentrate, organize her thoughts, retrieve words, make decisions, and focus on the needs of her students. She also experienced hypersomnia, racing thoughts, panic attacks, uncontrollable crying, inability to eat, and thoughts of suicide.” Even after she was on leave, Eckstrand’s condition continued to deteriorate, causing her to experience “post-traumatic stress symptomology.” She was unable to return to work and later sued the school for ADA violations and constructive discharge.

The trial court granted the school system’s motion for summary judgment, both on the ADA claims and the constructive discharge claims. The 7th Circuit reversed as to the former issue and affirmed as to the latter.

The Court of Appeals found that there was no question that Eckstrand had a disability and that she had made the school aware of it. As framed by the appellate court, the “critical issue” was whether Eckstrand “presented evidence that the school district failed to reasonably accommodate her.” The court concluded that Eckstrand had engaged in an interactive communication process with the school district and that the school district was responsible for the breakdown in that process.

The 7th Circuit noted that cases involving mental disabilities were particularly difficult because often times they involved medical conditions that were “non-obvious” to the employer. The appellate court observed that its past decisions had demonstrated that employees must “make their employers aware of any nonobvious, medically necessary accommodations, with corroborating evidence such as a doctor’s note or at least orally relaying a statement from a doctor, before an employer may be required under the ADA’s reasonableness standard to provide a specific modest accommodation the employee requests.” Not only did the appellate court find that Eckstrom had met that standard, at least from the point where she had provided a note from her physician, the court concluded that “[l]ittle hardship would have been imposed in providing Eckstrand an available classroom.” The court remanded the case for the jury to determine whether the school district had failed to accommodate her disability.

As noted above, however, the Court of Appeals did affirm the dismissal of Eckstrand’s claim that she had been constructively discharged, finding that Eckstrand had not shown that the “conditions of her employment even approached the intolerable levels normally required in constructive-discharge cases.”

Frankly, I am somewhat perplexed by the court’s constructive discharge analysis. The court found that Eckstrand had presented sufficient evidence to demonstrate that: a) she was suffering from a form of depression; b) the symptoms of her depression were severe, including suicidal ideation; c) she informed the school district of her condition and the seriousness of her symptoms; d) the school district could have alleviated this her problems and addressed her disability by offering her the accommodation she requested with “little hardship;” and e) it was unwilling to do so, without explaining rationally the basis for its refusal. In this context, I’m not sure what option Eckstrom had, but to quit. Accepting the validity of the medical analysis, Eckstrom would have been jeopardizing her life by continuing to work without the accommodation.

The Eckstrom decision provides an interesting analysis of this issue. The concurring opinion also is curious, seemingly suggesting that once Eckstrom’s mental health continued to deteriorate, she no longer was “qualified” to teach elementary school students. The majority, however, noted that it did not need to reach the issue of “whether a person, whose disability is aggravated by an employer, ceases to be qualified under the ADA once the disability has grown sufficiently severe.” Personally, I don’t think that judgment call is too difficult; if the employer is responsible for exacerbating an employee’s disability, it should not be able to avail itself of the defense that the employee ceased to be qualified for the job. This analysis would be self-evident if considered in the context of a physical, rather than a mental, disability. But, as the 7th Circuit opined, that issue has been reserved for another day.

In sum, consider the following six points when you evaluate this issue:

1) Is your employee qualified for the job?

2) Does your employee suffer from a cognizable disability under the ADA?

3) Has your employee engaged in an interactive communicative process to apprise you both of her disability and the accommodation that she deems necessary?

4) Could she perform the job with a reasonable accommodation?

5) What accommodations should be considered, in addition to the accommodation sought by the employee? and,

6) Would the proposed accommodation cause your company an undue hardship?

In my view, if you analyze these issues carefully, you should be able to achieve an adequate resolution to this situation that both preserves your employee’s job and satisfies your company’s ongoing need for a high-performing employee. Good luck!

Dorsey & Whitney

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