Excerpted from New Hampshire Employment Law Letter written by attorneys at the law firm of Sulloway & Hollis, P.L.L.C.

The Equal Employment Opportunity Commission (EEOC) recently addressed an issue employers may face more frequently in coming months: What obligations does the Americans with Disabilities Act (ADA) place on employers with regard to employees who have posttraumatic stress disorder (PTSD)?

Is PTSD covered?
The EEOC issued an opinion letter in response to an employer's question regarding how to treat an employee with PTSD who was defensive, volatile, and unable to get along with coworkers. The employer didn't provide a great deal of information regarding the employee's condition and conduct, but the EEOC issued an "informal discussion" that may provide guidance to employers facing this situation.

The EEOC initially noted that while PTSD is a mental impairment, it isn't clear that an employee is always limited in a major life activity, which is required for ADA coverage. Major life activities are basic activities that the average person can do with little or no difficulty. The EEOC stated that major life activities that may be relevant in assessing whether PTSD is a disability might include caring for oneself, thinking, concentrating, interacting with others, sleeping, and working. Whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, its duration, and its permanent or long-term effects.

The EEOC reasoned that with respect to the major life activity of interacting with others, some unfriendliness with coworkers or a supervisor by itself wouldn't be sufficient to establish a substantial limitation. An impairment substantially limits an individual's ability to perform a major life activity if it significantly restricts him as compared to the average person in the general population. An individual would be substantially limited if, on a long-term basis, his relations with others were regularly characterized by severe problems such as consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.

ADA protection
The EEOC went on to note that an employee must be qualified for the job to be protected by the ADA and that job-related requirements may include attributes such as the ability to work with others or work under pressure. And while the ADA requires reasonable accommodations, it generally allows you to develop and enforce conduct standards that are job-related and consistent with business necessity, such as prohibitions on violence, threats of violence, or destruction of property and requirements of punctuality and attendance. Similarly, you may prohibit insubordination toward supervisors and managers, forbid employees from yelling, cursing, shoving, or making obscene gestures at each other in the workplace, and require employees to show respect for clients and customers.

The ADA's requirements don't include excusing a violation of a uniformly applied conduct rule that's job-related and consistent with business necessity even if an employee's disability causes him to violate the rule. However, the EEOC went on to note that you must provide a reasonable accommodation to enable an employee with a disability to meet a conduct standard in the future so long as it doesn't cause an undue hardship, assuming the discipline for the initial violation isn't termination and the employee has requested an accommodation.

For example, if the employee has a disability that causes him to lose his temper and violate a uniformly applied rule requiring courtesy toward coworkers, you may discipline him for violating the rule. However, assuming the discipline isn't termination and the employee then requests time off to seek treatment, you must grant his request for a leave of absence or some other reasonable accommodation. On the other hand, if the employee doesn't ask for a reasonable accommodation, you may (but aren't required to) ask if he thinks there's an accommodation that might help him avoid future misconduct.


Bottom line
According to the EEOC, between October 2001 and February 2008, more than 30,000 veterans serving in Iraq, Afghanistan, and surrounding duty stations were wounded in action. Many veterans have been diagnosed with PTSD. It may be helpful to review guidance on accommodating returning veterans with disabilities. Check out the EEOC's opinion letter online. It also may be helpful to review the guidance the EEOC issued this past February: "Veterans with Service-Connected Disabilities in the Workplace and the Americans with Disabilities Act."


Copyright 2008 M. Lee Smith Publishers LLC. NEW HAMPSHIRE EMPLOYMENT LAW LETTER. NEW HAMPSHIRE EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.