Employers are asking more questions about how to handle stressed-out workers, according to Peter Petesch, an attorney with Littler Mendelson in Washington, D.C.
American workers are stressed out on the job as a result of money worries, workplace concerns and worries about the economy, according to a November 2010 American Psychological Association survey. According to the survey, 76 percent of workers are stressed out about money, 70 percent are stressed about work and 65 percent are feeling stressed out by the economy. The percentage who are stressing over job stability has risen steadily from 42 percent in 2008 to 44 percent in 2009 and 49 percent in 2010.
Employers’ wellness initiatives and employee assistance programs (EAPs) can help reduce employees’ stress levels, Petesch told SHRM Online. But the employer need not provide a stress-free workplace, he added, noting that many accommodations sought by those who are stressed out are not required under the Americans with Disabilities Act (ADA).
‘Bossectomy’ Not Required
An employer does not, for example, have to reassign an employee to a new supervisor who the employee believes will not stress him or her out as much, Petesch noted.
“So many jobs involve confronting or dealing with stressful situations. An employer need not abandon the essential functions of a job in order to accommodate an employee,” he said. “Providing a stress-free workplace is both impractical and held to be unreasonable. Similarly, allowing an employee—who is there for the purpose of addressing sometimes stressful situations—to disengage at will from a stressful situation may not be reasonable.”
Kathy Dudley Helms, an attorney with Ogletree Deakins in its Columbia, S.C., office, said that she is dealing with stress-related employment issues on a weekly basis. “The human resources professionals with whom I work are more frequently telling me that when they meet with employees having performance problems the response is much more frequently that the employee is stressed out about the possibility of losing his/her job.
“Stress-related claims can manifest themselves in any number of ways,” she said. “There can be situational stress that may or may not be covered by the ADA. There can also be claims that stress aggravates other medical conditions such as high blood pressure, diabetes, anxiety conditions or depression.”
Helms cautioned that employers should not be dismissive of an employee who claims to be “too stressed out” to perform certain tasks and of related requests for accommodation, noting that coverage under the ADA Amendments Act is broad. Employers should listen to an employee who claims to be stressed out and consider the accommodations that are requested, she noted.
However, Petesch said that workers who are feeling stressed out aren’t necessarily disabled under the ADA. “A mere episode of stress still is not likely to constitute a disability,” he remarked. Petesch explained that there needs to be an underlying impairment that is sufficiently serious in duration and substantially limits a major life activity for there to be an ADA disability.
“Observing the effects of mere episodic stress still may not equate to regarding an individual as being disabled or having any real impairment,” he said. “And while there are risks to referring an employee to the EAP—risks of a claim that the employee is now regarded as disabled—the mere referral in many cases doesn’t, without more, confer protection under the ‘regarded as’ prong.”
Communication can be a great stress relief, Helms added. “If an employee is having performance problems, they should be made aware of it and given the opportunity to correct them,” she said. “If there is additional training or other avenues an employee can pursue to address problems, work with the employee to give him/her those opportunities. If the employee doesn’t make it, sometimes the employee can better appreciate the company’s efforts. Even if the employee doesn’t recognize the effort and still files an administrative charge or lawsuit, a jury will appreciate the company’s effort to be fair.”
Petesch added that “if an individual has an underlying condition where removal of some stressors may help the person perform the essential functions of the job, it is at least worth discussing and possibly implementing so long as it doesn’t gut the whole purposes of the job.”
Wellness programs and EAPs also can help. Through their wellness initiatives, many employers offer seminars on coping with stresses in and out of the workplace. “These are useful voluntary initiatives,” Petesch noted.
Allen Smith, J.D., is SHRM’s manager of workplace law content.