An employee is refusing to return to work. She tells us that she is afraid of COVID-19 infection and this fear is causing her to lose sleep and have anxiety and depression. I have been counseled on my right generally to terminate employees who refuse my recall to work. I am concerned to do so in this case because I have reason to believe this employee has sought treatment for anxiety and depression issues in the past. Should I be concerned about a disability discrimination claim if I terminate her employment? Could her suspected history of anxiety and depression (heightened by the COVID-19 crisis) be deemed a disability under some law?
You are right to be concerned about this. Generally, the Americans with Disabilities Act (“ADA”) protects employees with mental health conditions that qualify as a disability. Employers must provide these employees with reasonable accommodations enabling them to do their jobs instead of disciplining or terminating them for not doing their jobs. Determining whether your employee has a condition that would be considered a disability and entitle them to this protection can be difficult to determine.
Not all mental health conditions will rise to the level of a covered disability. A general sense of nervousness, fear or anxiety arising from the possibility that as a result of returning to work you may become COVID-19 positive (even if real and tangible to the employee and honestly expressed) is not a disability under the ADA. Instead, only mental health conditions that are an impairment “substantially limiting a major life activity” (e.g. sleep, concentrating, communicating and other activities that effect an employee’s ability to work) are deemed a disability under the ADA.
Employees experiencing mental health conditions must request accommodation (e.g. paid or unpaid leave) from their employer. This request should then trigger a dialogue with the employer concerning the issue. Employers have a right to ask for documentation from a doctor to verify the employee’s condition. This determination may also include recommendations from the doctor as to the type and duration of accommodations that are necessary for the employee.
Assuming an employee requests accommodation and documentation has been obtained establishing that in fact the employee has a disability requiring reasonable accommodation under the ADA, the question then becomes what such a reasonable accommodation would be. Most employees in the situation you describe are seeking paid or unpaid leave for some period. If you decide leave is going to be the reasonable accommodation offered (because working from home or other accommodations are not possible) there is no legal requirement that the employee be paid while on this leave. The duration of the leave then becomes the difficult question. Employers are not required to provide open-ended or indefinite leave. A duration can and should be set by the employer so that at some point it is known whether the employee can do the job and if not when a replacement employee must be found. There is no specific legal guidance that can be given as to the duration of leave in this situation. The best practice is to consider recommendations of the doctors, if any, and, to the extent possible, make the duration of leave consistent for all your employees having similar disabilities requesting leave as an accommodation. This will, to the extent possible, make any discrimination claims defensible.
In your case, since the employee did not tell you that she has a mental health condition constituting a disability (and/or provide you with documentation from her doctor describing her condition) and make a request of you for a reasonable accommodation you have no obligation to consider a leave or other request for accommodation on her behalf. Instead, you should decide whether to terminate or allow her to remain laid off.
 I am assuming your practice has decided not to make paid leave pursuant to the Families First Coronavirus Response Act available to your employees and that your practice has less than 50 employees and the Family Medical Leave Act is not applicable.