Mental Illness and the ADA

For a better understanding of the issues, let's hypothetically imagine that a local privately owned Regional Hospital hired Linda for the position of nurse in 2000. Linda has never disclosed to the Hospital that she was diagnosed with depression and has been receiving treatment for this disorder for the past 15 years. Linda's primary duties at the Hospital include providing bedside nursing care, carrying out physician medical regimens, and supervising a number of aides. Like most nurses, Linda's schedule is not an ordinary workday, but rather, consists of night shifts.

In the past five months of work, Linda has sporadically missed her shift or arrived late. Moreover, her subordinate employees are complaining to Human Resources that Linda has suddenly become 'rude' and 'harsh.' Linda's patients have also been complaining about her behavior. Due to these complaints, the Hospital investigates Linda's behavior and receives reports from the doctors for whom Linda works that her attitude toward work has changed and that she appears hostile. None of the doctors recognize Linda's behavior as a mental condition, but, rather, they all believe it is simply another disgruntled employee.

Due to this behavioral change, the Hospital meets with Linda and counsels her on her performance. Over the next three months, the Hospital issues Linda verbal and written warnings about her behavior and her absenteeism. She is also put on probationary status. During Linda's probationary period, and after counseling, her behavior does not improve. Finally, the Hospital decides it is time to terminate her.

Hospital management asks Linda to meet with them, at which meeting her supervisor intends to carry out the termination. During this meeting, Linda's behavior, performance and attendance over the past six months are discussed. Linda explains that she knows she has been performing poorly, and it is because she was required to switch her medications, as her previous ones had been making her sick. Further, she states that some of the new medicines made her sick or sleepy and that is why she missed or was late to work. She says that she was embarrassed to tell her supervisor, but she can get a doctor's note if needed. She also states that a new medication that she started last week seems to be better, and hopefully in the next month it will take effect and she will be back to her 'old self.'

She tells her supervisor that she realizes she probably has been very hard to work with and that she should have informed her earlier of her depression, but, the disease, at that point being untreated, hindered her from admitting such. She apologies for her behavior and requests that her schedule be modified so that she can take the time necessary to adjust to the new medication. Without consistent dosing, her disease causes her to get irritable and frustrated to a significant level after being awake for more than four hours at one time. Linda tells her supervisor that if she is able to work four hours, then takes a few hours off, and then works some more, until the medicine takes effect over the next few weeks, she will be a great employee again.

A Question of Accommodation

In the hypothetical situation above, does the Hospital have to accommodate Linda, despite her failure to inform them of her disease? The Hospital has taken the proper steps for discipline ' is it just to ignore that counseling? Is this mental health disease cause for an accommodation and protection? To establish a case under the ADA, a plaintiff must show that: 1) she is a disabled person within the meaning of the ADA; 2) she is otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation; and 3) she has suffered an adverse employment decision as a result of the discrimination. See Williams v. Philadelphia Housing Authority Police Dept., 380 F.3d 751 (3^rd Cir. 2004).

To satisfy the first element, a plaintiff must prove that her disorder fits within the ADA's statutory definition of disability. To be disabled, the plaintiff must: 1) have a physical or mental impairment that substantially limits one of more major life activities;) have a record of such impairment; or 3) be regarded as having such impairment. 42 USC 12102(2). The crux of this element of a plaintiff's case turns on the definition of 'substantially limits' which has been defined by the courts as meaning 'considerable' or 'to a large degree.'

The second element requires proof that the plaintiff is 'qualified' to perform the job. As defined by the statute, a 'qualified' employee is an individual who satisfies the requisite skill, and other job-related requirements of the employment position, and who, with or without a reasonable accommodation, can perform the essential functions of the job. 28 CFR 1630.2(m)-(n). (Linda is probably qualified to perform her duties, therefore, this element will not be discussed.)

Finally, the third element in proving discrimination requires a plaintiff to prove either: 1) that the employer subjected the plaintiff to an adverse employment action; or 2) that the employer failed to make reasonable accommodations for the otherwise qualified employee. 42 USC 12111(9). A reasonable accommodation is modification to the work environment, the manner in which the position is customarily performed or modifications that enable the employee to enjoy the equal benefits of employment that are enjoyed by others that do not have a disability. 29 CFR 1630.2(0)(1)(ii)-(iii). Some reasonable accommodations include job restructuring, part-time or modified work schedules, reassignment to a vacant position, change to equipment, or adjustments to policies.

An employer must be conscious of these requirements before making any decisions related to a disabled employee. The two key issues in evaluating Linda's facts are: 1) does depression (or other mental illness) cross the threshold as a disability under the ADA? and 2) what accommodations, if any, does an employer have to provide to an individual with mental illness, and/or, is it permissible to terminate an employee who does not provide adequate notice of an alleged disability?

Proving a Disability

One of the most challenging elements for a plaintiff to prove is that a mental disease is a disability under the ADA. Many mental diseases are not substantial enough to be classified as a disability. On the face of mental disease, one would have to show that he or she has a mental disease and that it substantially limits a major life activity.

In Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083 (8^th Cir. 2001), the court found that an employee failed to prove a substantial limit when evidence was produced that despite having depression for more than 30 years, the plaintiff was able to take care of herself, raise a family, manage her own finances, and successfully care for her farmland.

Alexandru v. Northeast Utilities Service Co., 23 A.D.D. 1188 (D.Conn. 1996) provides an example that an employer's witnessing of certain behaviors associated with a mental disease does not constructively provide knowledge to the employer of the disability. An employer's mere knowledge or observation of symptoms associated with a stress disorder does not prove that an employer regarded an employee as disabled. The court also placed weight on the fact that the plaintiff acknowledged that the employer never suggested to plaintiff that it knew or believed she was suffering from a mental impairment.

Finally, even if an employee can prove that he or she has a mental illness, it is very difficult to show that the illness substantially limits his or her major life activities. Many courts have found that mental illnesses affect an individual's major life activities, but that affecting a major life activity is not the same as substantially limiting a major life activity as required by the ADA. Therefore, proving that a mental illness is a disability under the ADA is an uphill battle.

In Salamo Martinez v. Celulares Telehonica, Inc., 272 F.Supp. 2d 144 (DPR 2003), the court found that major depression did not substantially limit the employee's ability to perform manual tasks, sleep, drive, concentrate or work and, therefore, was not a disability under the ADA. In Soileau v. Guilford of Maine, Inc., 928 F.Supp. 37 (DMe. 1996), aff'd 105 F.3d 12 (1^st Cir. 1997), an employee claimed that his ability to work and his ability to interact with other people was significantly affected by his depression that limited his ability to carry on his daily activities. The court was unwilling to expand the statute's 'caring for oneself' or 'performing manual tasks' to encompass the ability to get along with others. Failing to interact with others was not a major life activity.

In the hypothetical case study above, Linda has an uphill battle in proving that her disability substantially limits her major life activities. Her inability to get to work in a timely manner, and her newfound lack of personal communication skills do not necessarily make her disabled under the ADA. Simply, even without the correct medication, her depression would not rise to the level of severity required under the ADA. Of course, each specific fact pattern must be evaluated independently before dismissing it as not satisfying the definition. Remember, the ADA does not provide accommodations to disabilities, but rather it provides accommodations to the limitations that a given disability may have on an individual. Therefore, just because two individuals may have the same disability, each may qualify differently under the ADA based on the actual limitations the disability causes in an individual capacity.

The 'Perceived As' Theory

Although Linda may not qualify under the ADA for having a disability, consideration for accommodations should still be discussed, because, simply, it may be easier to accommodate an individual like Linda to avoid the costs of litigation and of finding a replacement employee. However, when an employer decides to accommodate an individual such as Linda, consideration must be given to the 'perceived as' theory under the ADA. Providing an individual with an accommodation when that persondoes not have a disability may open an employer to a future claim that the employer 'perceived' the employee as disabled based on the fact that the employer accommodated the individual. If possible, an employer, rather than qualifying the assistance in this type of situation as an accommodation, may decide to classify the accommodation under its leave policy or simply as a compromise to assist the employee's issues presented. Situations where the employee's condition verges on the fence line as a disability leaves many employers in a 'Catch-22' situation ' failing to accommodate may leave them open for a claim, and accommodating may leave them open for a perceived as claim in the future. It is a judgment call that must be made after a full evaluation of the specific facts.

In cases where there is a qualifying disability, or for the uncertainty of qualifying a mental disability, it is pertinent to examine an employer's affirmative duty to attempt to provide an employee with a reasonable accommodation.

'Reasonable Accommodation'

In determining the appropriate 'reasonable accommodation' an employer must first determine the employee's limitations because of the disability in order to review what would be reasonable in assisting the employee. The courts have recognized that the regulations place obligations on both the employer and the disabled employee to participate in the process of determining the most prudent accommodation. Although an employer is required to provide reasonable accommodations, an employer is not required to provide an unreasonable accommodation'more clearly, an accommodation that would cause an employer an undue burden or financial hardship in not required by the ADA.

In making the determination of what is or is not a reasonable accommodation the employer must act in good faith. In Taylor v. Phoenixville School District, 184 F.3d 296 (3^rd Cir. 1999), the Third Circuit emphasized the specific requirement for an employer who is involved in the process of determining a reasonable accommodation to act in good faith and make reasonable efforts
to provide an accommodation. Specifically, the plaintiff, Taylor, was employed for nearly 20 years as a principal's secretary before being hospitalized for bipolar disorder. She requested reasonable accommodations from the School District, but was ignored. Instead of participating in a determination of a reasonable accommodation, plaintiff submitted evidence that the School District actually increased her job duties and responsibilities. The court found that the School District failed to participate in good faith in the interactive process to determine a reasonable accommodation.

In Taylor v. Principal Financial Group, Inc., 93 F.3d 155 (5^th Cir. 1996), the court recognized an employer's responsibilities to participate in an interactive process for determining a reasonable accommodation, but found that an employee also has a duty to provide his or her employer with enough notice to allow an employer to actively and fully participate in such process. Specifically, the court found that where the disability, resulting limitations and necessary reasonable accommodations are not open, obvious, and apparent to an employer, the initial burden rests upon the employee or his health care provider to identify the disability and resulting limitations. An employee cannot remain silent and expect the employer to identify and accommodate the individual's disability and limitations.

Likewise, in the Eleventh Circuit's opinion in Gaston v. Bellingrath Gardens & Homes, Inc., 167 F.3d 1361 (11^th Cir. 1999), an employee's failure to request a reasonable accommodation defeated her claim that her employer discriminated against her by failing to provide a reasonable accommodation. Citing to the EEOC's guidelines, the court stated that it is the responsibility of the individual to inform the employer that an accommodation is needed.

However, this hard-fast requirement that an employee must institute or trigger the ADA's reasonable accommodation requirements by requesting such, has been called into question by some circuit courts. Particularly, the Seventh Circuit found that taking a steadfast approach that the ADA requires an employee to provide notice is simply too rigid. Specifically, the court notes that the statute states 'in general' it is the responsibility of the individual to inform the employer of the accommodation needed. Johnson v. Foulds, Inc., 111 F.3d 133 (7^th Cir. 1997) suggests that some employees may not know how to ask for the accommodation, or may not come straight out and request such, but may discuss their condition and limitations. The Seventh Circuit takes the stance that this type of behavior is an acceptable means of an employee's notifying an employer that an accommodation may be necessary. Johnson does not remove the requirement that an employer be notified; it simply takes a more mild approach in what will qualify as notification.

So, in the end, where do Linda, her depression, and the local Hospital stand? Linda's depression, like most mental disabilities, is her biggest hurdle in prosecuting a claim for disability discrimination if the Hospital terminates Linda. It should be noted, however, that most courts recognize that it is not the label associated with the alleged disability that qualifies an individual under the ADA, but rather the actual limitations that the disability imposes on the individual. Therefore, if Linda could show that her disability not only affects a major life activity, but substantially limits a major life activity, she may qualify under the ADA. If she is successful in proving a substantial limit on a major life activity, her discharge and the failure of the Hospital to provide her with a reasonable accommodation may yield liability for the Hospital.

As discussed above, the Hospital must in good faith participate with Linda in determining her needs to overcome her limitations (if such exist). Specifically, in the hypothetical fact pattern, a reasonable accommodation may be for the Hospital to break Linda's schedule up into less strenuous time periods so that Linda can receive the required rest needed during the initial dosing of her medication. Once the medication is sufficiently working the reasonable accommodation may be removed.

However, what about Linda's failure to address this situation with the Hospital prior to her final counseling session where the Hospital anticipated terminating her? Even under the strictest interpretations of the statute, i.e., the Fifth and Eleventh Circuits, it may be hard to avoid exposure if the Hospital continues with its plans to terminate Linda. Although these strict-interpreting courts hold that the employee has an affirmative duty to notify the employer that he or she is seeking a reasonable accommodation, there has not been a consistent threshold of when that notice must be given. Terminating Linda during their intended meeting after Linda has expressed her alleged disability may open the Hospital to liability should Linda prevail on establishing that her disability qualifies under the ADA.

Bryce G. Murray and E. Fredrick Preis, Jr. are attorneys in the Labor and Employment Section in the New Orleans office of Lemle & Kelleher, LLP.

Congress enacted the Americans with Disabilities Act ('ADA') as an attempt to provide physically and mentally disabled Americans with a means to combat a long history of discrimination in nearly all areas of civic life. To achieve this goal, Congress divided the Act into five titles, the first of which focuses exclusively on employment discrimination. While the statutory language and regulations seem straightforward, the corresponding legal realities to employers have caused many to come to the realization that 'even the most conscientious employer, without clear guidance as to what the [ADA] statute and implementing regulations require in a given situation, may find itself defending a lawsuit because of business decisions made in good faith, but adversely to an allegedly disabled individual.' 42 Am. Jur. 3d Proof of Facts Sec. 1 (2007).

One potentially dangerous situation employers struggle to understand arises when an employer neither knows nor recognizes an employee's mental disability, and has cause to terminate that employee, but, prior to termination, discovers the disability. In these types of situations where behavioral or performance problems may be caused by mental disease or the mental disease may be attributing to behavioral or performance problems, employers are many times left between 'a rock and a hard place,' especially when the employee fails to disclose the mental illness until the last moments of an employer's discipline process. This article examines why these issues are so difficult to identify, and potential pitfalls that routinely arise for an employer when dealing with an employee's mental health issues.

Hypothetical Case Study

For a better understanding of the issues, let's hypothetically imagine that a local privately owned Regional Hospital hired Linda for the position of nurse in 2000. Linda has never disclosed to the Hospital that she was diagnosed with depression and has been receiving treatment for this disorder for the past 15 years. Linda's primary duties at the Hospital include providing bedside nursing care, carrying out physician medical regimens, and supervising a number of aides. Like most nurses, Linda's schedule is not an ordinary workday, but rather, consists of night shifts.

In the past five months of work, Linda has sporadically missed her shift or arrived late. Moreover, her subordinate employees are complaining to Human Resources that Linda has suddenly become 'rude' and 'harsh.' Linda's patients have also been complaining about her behavior. Due to these complaints, the Hospital investigates Linda's behavior and receives reports from the doctors for whom Linda works that her attitude toward work has changed and that she appears hostile. None of the doctors recognize Linda's behavior as a mental condition, but, rather, they all believe it is simply another disgruntled employee.

Due to this behavioral change, the Hospital meets with Linda and counsels her on her performance. Over the next three months, the Hospital issues Linda verbal and written warnings about her behavior and her absenteeism. She is also put on probationary status. During Linda's probationary period, and after counseling, her behavior does not improve. Finally, the Hospital decides it is time to terminate her.

Hospital management asks Linda to meet with them, at which meeting her supervisor intends to carry out the termination. During this meeting, Linda's behavior, performance and attendance over the past six months are discussed. Linda explains that she knows she has been performing poorly, and it is because she was required to switch her medications, as her previous ones had been making her sick. Further, she states that some of the new medicines made her sick or sleepy and that is why she missed or was late to work. She says that she was embarrassed to tell her supervisor, but she can get a doctor's note if needed. She also states that a new medication that she started last week seems to be better, and hopefully in the next month it will take effect and she will be back to her 'old self.'

She tells her supervisor that she realizes she probably has been very hard to work with and that she should have informed her earlier of her depression, but, the disease, at that point being untreated, hindered her from admitting such. She apologies for her behavior and requests that her schedule be modified so that she can take the time necessary to adjust to the new medication. Without consistent dosing, her disease causes her to get irritable and frustrated to a significant level after being awake for more than four hours at one time. Linda tells her supervisor that if she is able to work four hours, then takes a few hours off, and then works some more, until the medicine takes effect over the next few weeks, she will be a great employee again.

A Question of Accommodation

In the hypothetical situation above, does the Hospital have to accommodate Linda, despite her failure to inform them of her disease? The Hospital has taken the proper steps for discipline ' is it just to ignore that counseling? Is this mental health disease cause for an accommodation and protection? To establish a case under the ADA, a plaintiff must show that: 1) she is a disabled person within the meaning of the ADA; 2) she is otherwise qualified to perform the essential functions of the job, with or without a reasonable accommodation; and 3) she has suffered an adverse employment decision as a result of the discrimination. See Williams v. Philadelphia Housing Authority Police Dept. , 380 F.3d 751 (3 rd Cir. 2004).

To satisfy the first element, a plaintiff must prove that her disorder fits within the ADA's statutory definition of disability. To be disabled, the plaintiff must: 1) have a physical or mental impairment that substantially limits one of more major life activities;) have a record of such impairment; or 3) be regarded as having such impairment. 42 USC 12102(2). The crux of this element of a plaintiff's case turns on the definition of 'substantially limits' which has been defined by the courts as meaning 'considerable' or 'to a large degree.'

The second element requires proof that the plaintiff is 'qualified' to perform the job. As defined by the statute, a 'qualified' employee is an individual who satisfies the requisite skill, and other job-related requirements of the employment position, and who, with or without a reasonable accommodation, can perform the essential functions of the job. 28 CFR 1630.2(m)-(n). (Linda is probably qualified to perform her duties, therefore, this element will not be discussed.)

Finally, the third element in proving discrimination requires a plaintiff to prove either: 1) that the employer subjected the plaintiff to an adverse employment action; or 2) that the employer failed to make reasonable accommodations for the otherwise qualified employee. 42 USC 12111(9). A reasonable accommodation is modification to the work environment, the manner in which the position is customarily performed or modifications that enable the employee to enjoy the equal benefits of employment that are enjoyed by others that do not have a disability. 29 CFR 1630.2(0)(1)(ii)-(iii). Some reasonable accommodations include job restructuring, part-time or modified work schedules, reassignment to a vacant position, change to equipment, or adjustments to policies.

An employer must be conscious of these requirements before making any decisions related to a disabled employee. The two key issues in evaluating Linda's facts are: 1) does depression (or other mental illness) cross the threshold as a disability under the ADA? and 2) what accommodations, if any, does an employer have to provide to an individual with mental illness, and/or, is it permissible to terminate an employee who does not provide adequate notice of an alleged disability?

Proving a Disability

One of the most challenging elements for a plaintiff to prove is that a mental disease is a disability under the ADA. Many mental diseases are not substantial enough to be classified as a disability. On the face of mental disease, one would have to show that he or she has a mental disease and that it substantially limits a major life activity.

In Cooper v. Olin Corp., Winchester Div. , 246 F.3d 1083 (8 th Cir. 2001), the court found that an employee failed to prove a substantial limit when evidence was produced that despite having depression for more than 30 years, the plaintiff was able to take care of herself, raise a family, manage her own finances, and successfully care for her farmland.

Alexandru v. Northeast Utilities Service Co. , 23 A.D.D. 1188 (D.Conn. 1996) provides an example that an employer's witnessing of certain behaviors associated with a mental disease does not constructively provide knowledge to the employer of the disability. An employer's mere knowledge or observation of symptoms associated with a stress disorder does not prove that an employer regarded an employee as disabled. The court also placed weight on the fact that the plaintiff acknowledged that the employer never suggested to plaintiff that it knew or believed she was suffering from a mental impairment.

Finally, even if an employee can prove that he or she has a mental illness, it is very difficult to show that the illness substantially limits his or her major life activities. Many courts have found that mental illnesses affect an individual's major life activities, but that affecting a major life activity is not the same as substantially limiting a major life activity as required by the ADA. Therefore, proving that a mental illness is a disability under the ADA is an uphill battle.

In Salamo Martinez v. Celulares Telehonica, Inc. , 272 F.Supp. 2d 144 (DPR 2003), the court found that major depression did not substantially limit the employee's ability to perform manual tasks, sleep, drive, concentrate or work and, therefore, was not a disability under the ADA. In Soileau v. Guilford of Maine, Inc. , 928 F.Supp. 37 (DMe. 1996), aff'd 105 F.3d 12 (1 st Cir. 1997), an employee claimed that his ability to work and his ability to interact with other people was significantly affected by his depression that limited his ability to carry on his daily activities. The court was unwilling to expand the statute's 'caring for oneself' or 'performing manual tasks' to encompass the ability to get along with others. Failing to interact with others was not a major life activity.

In the hypothetical case study above, Linda has an uphill battle in proving that her disability substantially limits her major life activities. Her inability to get to work in a timely manner, and her newfound lack of personal communication skills do not necessarily make her disabled under the ADA. Simply, even without the correct medication, her depression would not rise to the level of severity required under the ADA. Of course, each specific fact pattern must be evaluated independently before dismissing it as not satisfying the definition. Remember, the ADA does not provide accommodations to disabilities, but rather it provides accommodations to the limitations that a given disability may have on an individual. Therefore, just because two individuals may have the same disability, each may qualify differently under the ADA based on the actual limitations the disability causes in an individual capacity.

The 'Perceived As' Theory

Although Linda may not qualify under the ADA for having a disability, consideration for accommodations should still be discussed, because, simply, it may be easier to accommodate an individual like Linda to avoid the costs of litigation and of finding a replacement employee. However, when an employer decides to accommodate an individual such as Linda, consideration must be given to the 'perceived as' theory under the ADA. Providing an individual with an accommodation when that persondoes not have a disability may open an employer to a future claim that the employer 'perceived' the employee as disabled based on the fact that the employer accommodated the individual. If possible, an employer, rather than qualifying the assistance in this type of situation as an accommodation, may decide to classify the accommodation under its leave policy or simply as a compromise to assist the employee's issues presented. Situations where the employee's condition verges on the fence line as a disability leaves many employers in a 'Catch-22' situation ' failing to accommodate may leave them open for a claim, and accommodating may leave them open for a perceived as claim in the future. It is a judgment call that must be made after a full evaluation of the specific facts.

In cases where there is a qualifying disability, or for the uncertainty of qualifying a mental disability, it is pertinent to examine an employer's affirmative duty to attempt to provide an employee with a reasonable accommodation.

'Reasonable Accommodation'

In determining the appropriate 'reasonable accommodation' an employer must first determine the employee's limitations because of the disability in order to review what would be reasonable in assisting the employee. The courts have recognized that the regulations place obligations on both the employer and the disabled employee to participate in the process of determining the most prudent accommodation. Although an employer is required to provide reasonable accommodations, an employer is not required to provide an unreasonable accommodation'more clearly, an accommodation that would cause an employer an undue burden or financial hardship in not required by the ADA.

In making the determination of what is or is not a reasonable accommodation the employer must act in good faith. In Taylor v. Phoenixville School District , 184 F.3d 296 (3 rd Cir. 1999), the Third Circuit emphasized the specific requirement for an employer who is involved in the process of determining a reasonable accommodation to act in good faith and make reasonable efforts
to provide an accommodation. Specifically, the plaintiff, Taylor, was employed for nearly 20 years as a principal's secretary before being hospitalized for bipolar disorder. She requested reasonable accommodations from the School District, but was ignored. Instead of participating in a determination of a reasonable accommodation, plaintiff submitted evidence that the School District actually increased her job duties and responsibilities. The court found that the School District failed to participate in good faith in the interactive process to determine a reasonable accommodation.

In Taylor v. Principal Financial Group, Inc. , 93 F.3d 155 (5 th Cir. 1996), the court recognized an employer's responsibilities to participate in an interactive process for determining a reasonable accommodation, but found that an employee also has a duty to provide his or her employer with enough notice to allow an employer to actively and fully participate in such process. Specifically, the court found that where the disability, resulting limitations and necessary reasonable accommodations are not open, obvious, and apparent to an employer, the initial burden rests upon the employee or his health care provider to identify the disability and resulting limitations. An employee cannot remain silent and expect the employer to identify and accommodate the individual's disability and limitations.

Likewise, in the Eleventh Circuit's opinion in Gaston v. Bellingrath Gardens & Homes, Inc. , 167 F.3d 1361 (11 th Cir. 1999), an employee's failure to request a reasonable accommodation defeated her claim that her employer discriminated against her by failing to provide a reasonable accommodation. Citing to the EEOC's guidelines, the court stated that it is the responsibility of the individual to inform the employer that an accommodation is needed.

However, this hard-fast requirement that an employee must institute or trigger the ADA's reasonable accommodation requirements by requesting such, has been called into question by some circuit courts. Particularly, the Seventh Circuit found that taking a steadfast approach that the ADA requires an employee to provide notice is simply too rigid. Specifically, the court notes that the statute states 'in general' it is the responsibility of the individual to inform the employer of the accommodation needed. Johnson v. Foulds, Inc. , 111 F.3d 133 (7 th Cir. 1997) suggests that some employees may not know how to ask for the accommodation, or may not come straight out and request such, but may discuss their condition and limitations. The Seventh Circuit takes the stance that this type of behavior is an acceptable means of an employee's notifying an employer that an accommodation may be necessary. Johnson does not remove the requirement that an employer be notified; it simply takes a more mild approach in what will qualify as notification.

So, in the end, where do Linda, her depression, and the local Hospital stand? Linda's depression, like most mental disabilities, is her biggest hurdle in prosecuting a claim for disability discrimination if the Hospital terminates Linda. It should be noted, however, that most courts recognize that it is not the label associated with the alleged disability that qualifies an individual under the ADA, but rather the actual limitations that the disability imposes on the individual. Therefore, if Linda could show that her disability not only affects a major life activity, but substantially limits a major life activity, she may qualify under the ADA. If she is successful in proving a substantial limit on a major life activity, her discharge and the failure of the Hospital to provide her with a reasonable accommodation may yield liability for the Hospital.

As discussed above, the Hospital must in good faith participate with Linda in determining her needs to overcome her limitations (if such exist). Specifically, in the hypothetical fact pattern, a reasonable accommodation may be for the Hospital to break Linda's schedule up into less strenuous time periods so that Linda can receive the required rest needed during the initial dosing of her medication. Once the medication is sufficiently working the reasonable accommodation may be removed.

However, what about Linda's failure to address this situation with the Hospital prior to her final counseling session where the Hospital anticipated terminating her? Even under the strictest interpretations of the statute, i.e., the Fifth and Eleventh Circuits, it may be hard to avoid exposure if the Hospital continues with its plans to terminate Linda. Although these strict-interpreting courts hold that the employee has an affirmative duty to notify the employer that he or she is seeking a reasonable accommodation, there has not been a consistent threshold of when that notice must be given. Terminating Linda during their intended meeting after Linda has expressed her alleged disability may open the Hospital to liability should Linda prevail on establishing that her disability qualifies under the ADA.

Bryce G. Murray and E. Fredrick Preis, Jr. are attorneys in the Labor and Employment Section in the New Orleans office of Lemle & Kelleher, LLP.