Anxiety Disorders and the ADA

A recent Pennsylvania district court ruling underscores what one attorney calls the “fundamental difficulty” that employers face in responding to mental health-related disabilities in the workplace.

In Kiera Barber v. Subway, the U.S. District Court for the Middle District of Pennsylvania has ruled that Subway must head to trial to defend claims that the sandwich restaurant chain violated the Americans with Disabilities Act by terminating an employee rather than accommodate her disability.

The chain of events that led them to this point begins in the summer of 2012 …

Court records indicate that Kiera Barber—who worked as a “sandwich artist” at a Subway location in Harrisburg, Pa. for roughly two weeks starting in May 2012—completed an online employment application and subsequently interviewed with Akash Patel, the owner of the Harrisburg franchise. During that face-to-face meeting, Barber informed Patel that she suffers from anxiety and may need to take breaks when and if anxiety episodes occur during her shifts. (She also produced medical documentation of her anxiety disorder and social phobia, at Patel’s request.)

Patel, who had previously advised Barber that a sandwich artist’s duties included preparing sandwiches for and interacting with Subway customers, reportedly noted that Barber’s requested accommodation “wasn’t a problem.”

On June 12, however, Barber suffered an anxiety attack while preparing a sandwich at the front of the store, eventually retreating to an employee-only area to attempt to get her symptoms under control. According to Barber, Patel followed her to the back of the store, asking about her condition and pressuring her to return to work. When her condition did not improve, Barber requested permission to leave early.

And that’s where the concerned parties’ accounts of that June day begin to “diverge considerably,” according to court documents.

Barber says that Patel responded to her request by saying he “[didn’t] see any reason to keep training you if you’re going to keep having anxiety attacks.” She also testified that Patel “commanded” her to leave the store.

Barber claims she was never told that she was fired, but “perceived his order to leave as a formal termination of her employment with Subway.” Subway, however, maintains that Patel adequately accommodated Barber’s request and expected her to report for her next scheduled shift. When she didn’t, Patel concluded that Barber wasn’t coming back at all. Court records show that neither Barber nor Patel have initiated contact with the other since the June 12 incident.

It’s worth pointing out that this opinion is at the summary judgment stage, where the threshold for success is much lower than at trial or in the motion for summary judgment phase.

But, however the case plays out, it can still be instructive for employers, says Michael Studenka, a Newport Beach, Calif.-based partner at Newmeyer & Dillion.

Because mental-health disabilities are invisible to the eye, managers can simply perceive behavioral symptoms—tardiness, a lack of attention to detail, an inability to relate to co-workers or customers, for instance—as substandard work performance, says Studenka.

As such, mental health-related issues can be “a source of great exposure” for an organization, he says.

“Employers have an obligation to engage in the interactive process when they know or have reason to know that an employee is suffering from a disability in the workplace,” continues Studenka. “HR cannot be everywhere at once, and thus, in order to comply with this requirement, employers must remain vigilant in regularly training supervisors to recognize potential mental-health disabilities that exist in their workforce, as well as handling requests for accommodations based upon the same.”

Managers, he says, are “the eyes and ears of the company,” and “must understand what they need to do if they become aware of, or even suspect that an employee is dealing with a mental-health issue.”