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Dealing with Anxiety and the ADA

Mental health >-related issues present unique compliance challenges to employers, and experts say a recent ruling illustrates how easily an organization can run afoul of the Americans with Disabilities Act -- and what can be done to avoid doing so.

Monday, November 2, 2015
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A recent case involving an employee's anxiety disorder and claims of Americans with Disabilities Act violations underscores the inherent difficulty that employers have in recognizing and accommodating < mental health >-related disabilities in the workplace.

The Kiera Barber v. Subway story starts in 2012, when Kiera Barber started work as a "sandwich artist" at the restaurant chain's Harrisburg, Pa., location. Barber -- who served in that role for roughly two weeks beginning in May of that year -- had previously interviewed with Akash Patel, owner of the Harrisburg franchise. Court records indicate that Barber informed Patel during that meeting that she suffers from anxiety, and that she may need to take periodic breaks when and if anxiety episodes occur during her shifts. At Patel's request, Barber also produced medical documentation of her anxiety disorder and social phobia, according to court records.

Patel, who reportedly made clear to Barber that her position entailed preparing sandwiches for and interacting directly with Subway customers, told her that her requested accommodation "wasn't a problem."

During one of her first shifts after being hired, however, Barber suffered an anxiety attack while preparing a sandwich at the front of the store. In an effort to get her symptoms under control, she retreated to an employee-only area in the back of the restaurant, where she says Patel followed her to ask about her condition and pressure her to get back to work. When her symptoms didn't subside, Barber requested permission to leave work early.

Both parties seem to agree on the particulars up to that point. But Barber and Patel have different ideas of how the rest of the afternoon unfolded on June 12. to Barber, Patel responded to her request to leave early by saying he "doesn't see any reason" to continue with Barber's training if she was going to "keep having anxiety attacks." Barber also testified that Patel "commanded" her to leave the store.

Barber claims she was never explicitly told she was fired, but says she interpreted the order to leave as "a formal termination of her employment with Subway." For its part, Subway maintains that Patel adequately accommodated Barber's request and expected her to show up for her next scheduled shift. When she didn't, Patel deduced that Barber had no intention of coming back again. Neither has made an effort to contact the other since Barber's June 12 shift, according to court documents.

In September, the U.S. District Court for the Middle District of Pennsylvania ruled that Barber has provided enough evidence for a jury to determine that Subway violated the ADA in terminating her on the grounds of her anxiety disorder rather than accommodating her disability.

As this case heads to trial, the details of Barber's departure from Subway highlight the "fundamental difficulty" that employers face in properly responding to employees' < mental health >-related disabilities, says Michael Studenka, a Newport Beach, Calif.-based partner at Newmeyer & Dillion.

Unlike many physical disabilities, < mental health > disabilities are "invisible to the eye," and are thus often missed by employers, he says.

In some cases, managers may simply perceive behavioral symptoms that manifest themselves in the workplace -- inability to handle stress, tardiness, lack of attention to detail, difficulty relating to co-workers, for instance -- as "substandard work performance," adds Studenka.

Given that < mental health > disorders are not always apparent -- and the growing acceptance of < mental health > disabilities as legitimate, debilitating conditions that are recognized under the ADA -- employers would be well-served to regularly train supervisors to recognize potential < mental health > disabilities and provide for the appropriate accommodations.

Such training is critical to ensure compliance with the ADA, says Kelly Pate, a partner in Balch & Bingham's Montgomery, Ala.-based office, and a member of Balch & Bingham's labor and employment and litigation sections.

Managers and supervisors also "need to know when to call in the HR professionals," says Pate.

"For example, managers need to be ready to call on HR to help with the interactive process if the manager knows or even slightly suspects an employee is suffering from a < mental-health > disability," she says. "If the company knows or has reason to know of the disability, the company must take steps to engage the employee in an interactive process to determine if there is an accommodation solution."

Generally speaking, knowing when to engage in the interactive process is one of employers' most difficult steps in complying with the ADA, she continues.

Determining when to get involved may be even more difficult to discern when < mental health > issues are involved, says Pate, who, like Studenka, cautions against simply characterizing the appearance of symptoms connected to < mental health > disorders as "unremarkable performance problems" in the workplace.  

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Compared to physical disabilities, obtaining clear restrictions from medical providers can also be problematic when dealing with < mental health > disabilities, she says.

For example, a physician may prohibit an employee with a back impairment from lifting more than 10 pounds at a given time.

< Mental health > restrictions, however, "may sometimes be more obscure," says Pate, noting that helping an employee with anxiety issues to avoid especially tense or stressful situations may be a reasonable accommodation in some instances.

Arriving at an accommodation that suits all parties involved may take some work as well.

David James, the Minneapolis-based chair of Nilan Johnson Lewis's labor and employment practice group, points out that employers have an obligation to attempt providing an accommodation, "but not necessarily [the employee's] preferred accommodation."

For instance, he says, an employee may tell an HR representative that a psychologist singled out a work supervisor as a primary source of the worker's anxiety.

It may not be feasible to simply reassign an employee to a new supervisor, but steps can often be taken to alleviate his or her concerns, and "it's better to offer something -- even if the employee rejects it -- than to offer nothing at all" to a worker with < mental health issues," says James.

Say, for example, that bright lighting exacerbates an employee's anxiety.

"There's a situation that you can do something about," says James. "For example, maybe you can just move the employee to a different part of the office that has different lighting."

In Subway's case, a manager's communication -- or lack thereof -- with an employee seeking an accommodation may be what triggered the series of events that will ultimately play out in front of a jury, he says.

"As I read the case, it sounds like the manager didn't handle it particularly well. And it's unfortunate, because it seems [the company itself] did acknowledge the employee's disability and was prepared to accommodate her," says James. "It seems that Subway was trying to do the right thing, and, in a short period of time, took one misstep that led to this lawsuit."

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