Ask The Lawyer, By: Daniel A. Gwinn, Esq.

SEPARATION ANXIETY KEEPS NEW MOM AT HOME – WAS BOSS RIGHT TO FIRE HER?

QUESTION:  When my baby was born last year, I took 12 weeks of leave to bond with her. When it was time to return to work, I found I could not bear to be away from my little girl for more than a few hours: The first day I tried to go back to work, I had a severe panic attack and ended up in the hospital. I was diagnosed as suffering from separation anxiety. I’m working with a doctor and a therapist to get over the fear I feel when I leave my little one at home, but I have not been able to return to work full-time. When I asked if I could be allowed do at least part of my work from home – my work is done almost entirely online and over the phone – while I deal with my anxiety, I was terminated. My supervisor said the company does not allow anyone to telecommute. Is there anything I can do?

ANSWER:     You may have rights under the Americans with Disabilities Act (ADA) or Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA) which prohibit workplace discrimination against a “qualified individual.” The laws not only prohibit employers from discriminating against people with disabilities, they also require employers to make “reasonable accommodations” – which can include telecommuting or a reduction in hours – if the accommodation will not impose an “undue hardship” on the employer. (The ADA applies to employers with at least 15 employees, the PWDCRA applies to employers with just one employee.)

You are a “qualified individual” under the ADA if you have a disability; you are otherwise qualified for the job despite the disability, and you can perform the “essential functions” of your job with or without an accommodation.

From what you have described, you may pass the ADA test. Both post-partum depression and separation anxiety have been recognized by the courts as disabilities. Since you had been working before your leave – presumably without complaint – you most likely have all the experience, skills, degrees and/or certifications required for your job. The central question is whether you can perform the “essential functions” of your job if you worked from home part-time.

While many employers claim that workers really can’t do the job unless they are physically present at work, Courts are increasingly unwilling to accept an employer’s say-so. In 2018, a Tennessee employer had to pay more than $100,000 after refusing an attorney’s request to work from home for ten weeks while she was on bedrest for pregnancy complications. The employer’s claim that the attorney couldn’t meet the essential functions of her job (going to court, for example) if she telecommuted, was disproven by evidence that the woman had successfully telecommuted in the past and had not been required to participate in a trial during her eight years with the company.

Last summer, the Sixth Circuit Court of Appeals ruled that telecommuting part-time was a reasonable accommodation for a woman who – like you – suffered severe separation anxiety. As in the Tennessee case, there was evidence that the woman was able to perform all the essential elements of her job with the accommodation requested and that allowing her to work part-time from home for a few months was not an undue hardship on the employer.

Because you appear to be qualified under the ADA and your request for an accommodation seems to be reasonable, it is likely your employer discriminated against you, violating the ADA, by refusing your request.

Your employer’s refusal to even consider your request appears to be a second violation of the ADA, which states employers must engage in an “interactive process” when a request for accommodation is made. Employers are not required to give workers any accommodation they want, but must at least try to work something out so that an otherwise qualified employee may stay on the job.

The lawyers at GWINN LEGAL PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at www.gwinnlegal.com.

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN LEGAL PLLC. To view previous columns, please visit our website.

ASK THE LAWYER
By: Daniel A. Gwinn, Esq.

Attorney and Counselor at Law
GWINN LEGAL PLLC
901 Wilshire Drive, Suite 550
Troy, MI 48084

(248) 247-3300(248)
247-3310 facsimile
daniel@gwinnlegal.com
www.gwinnlegal.com

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