Christine Drake struggled with mental illness all her life, finally getting off public assistance when she took a job as a barista at a Seattle Starbucks in September 2001. With support from her supervisors, including extra training and time to practice making new drinks, Drake, 34, got good reviews and felt confident about her duties, though she suffers from bipolar disorder, major depression and borderline personality and attention deficit disorders.

The accommodations ended when a new manager took over in August 2003. Instead of bending the rules for Drake, the manager allegedly berated her in front of customers,

decreased her hours and finally, in May 2004, fired her, saying, “You're not Starbucks material.”

Drake took her case to the EEOC, which in September filed suit against Starbucks Coffee Co. in federal court in Seattle, alleging violations of the ADA. In its response, Starbucks argues Drake is not a qualified person with a disability and denies it discriminated against or fired her based on the alleged disability.

The Starbucks case is a high- visibility example of a growing problem for employers: complying with ADA and FMLA rules protecting employees with psychiatric disorders, while sorting out claims that are merely a cover for poor performance.

“As the stigma of mental illness diminishes in society, employees may find less reason to conceal such illnesses on the job,” says Jonathan Hafen, partner in Parr, Waddoups, Brown, Gee & Loveless. “In fact, some may try to exploit coverage under the ADA as a way to change their jobs or work environments.”

Questionable Absences

Navigating between the obligation to provide reasonable accommodation or unpaid leave to help employees deal with mental illness and protecting the company's legitimate business interests can be tricky business. People with psychiatric problems frequently have performance and attendance issues. They also may have problems getting along with supervisors or co-workers.

But each case must be evaluated on its merits. Sometimes a leave for treatment or a reasonable accommodation can result in a productive employee, as the EEOC claims Drake could have been in its case against Starbucks.

“All Ms. Drake needed was a modest accommodation so that she could continue to work to her fullest potential,” says Joan Ehrlich, director of the EEOC's San Francisco district office. “Employers must remember that disability does not mean inability.”

Unfortunately for employers, determining whether an employee has a legitimate disability that qualifies for legal protection under the ADA or the FMLA is not simple. Each of the federal laws sets a different test for qualification, and many state disability laws have their own standards.

The FMLA sets a relatively low bar. Because most mental illness qualifies as a “chronic health condition” meriting unpaid FMLA leave, employees usually can get a doctor to certify their need for time off. Often they are certified for intermittent leave, which can be especially burdensome for the employer.

“People will arrive in the middle of the day and say stress is triggering their disorder and they need to see a doctor,” says Bryant McFall, shareholder in Ogletree Deakins. “If the employee is taking a few hours here and a few hours there, there can be constant coming and going.”

An employer that doubts an employee qualifies for a leave can challenge the medical certification by getting second or third opinions from a doctor of its choosing. But once the employer grants an intermittent leave, he or she can't challenge the medical certification.

“If you later wonder if absence every Friday afternoon is really related to depression, you are between a rock and a hard place,” says Susan Fentin, partner in Skoler, Abbott & Presser.

Close Calls

The ADA sets a higher standard than the FMLA, requiring employers to accommodate employees only if the mental impairment “substantially limits a major life activity.”

“Whether a person has a disability is often a close call,” says Jonathan Segal, partner in WolfBlock. “If someone has major depression but it does not affect a major life activity, he is not disabled. But if you conclude the individual is not disabled and you are wrong, you lose.”

In fact, most ADA suits revolve around whether an impairment substantially limits a major life activity, not whether an individual actually has an impairment.

“This area continues to be controversial,” Hafen says. “There is a fair amount of disagreement in the courts over what constitutes a major life activity and whether there needs be a strong connection between the limitation, the life activity and the workplace.”

The courts have helped employers by distinguishing between mental illnesses, such as bipolar disorder, major depression, schizophrenia and alcoholism, which qualify as a disability, and personality or behavioral problems, such as not getting along with co-workers or supervisors, poor concentration or poor judgment, which do not qualify.

But tricky areas remain, such as the ADA provision that protects a person “regarded as” disabled.

“A manager would never say a person seems like he has cancer,” Segal says. “But he might say, 'he's nuts,' or 'she's crazy' or 'he's paranoid.' We use clinical labels very casually. An employee can say, 'If you thought I had a problem, you should have accommodated me.' Or if you take action against him, he can claim it is because of the condition you thought he had.”

Taking Action

On the other hand, employers often err on the side of caution in dealing with emotionally unstable employees who can't do the job, ignoring the fact that the law only covers employees who are capable of performing the “essential functions” of the position.

“Many employers are scared to do anything,” says Kara Shea, partner in Miller & Martin.

“They assume the employee is protected. But if you document their issues and are able to prove they can't do the job despite the accommodation, then they lose protection.”

While employment attorneys preach treating and documenting all employees' performance problems consistently, they acknowledge that employers face complicated issues with employees who can do the job, but are difficult to work with.

“With psychiatric disabilities, it is often difficult to measure performance problems,” Segal says. “Someone may be able to achieve the outcome, but may create issues along the way.

“

Segal says that because the issues involving the legal rights of mentally ill employees are so complex, he counsels employers to first consider the accommodation the employee is requesting. If it is reasonable and not disruptive to the business, providing the accommodation–whether or not it is legally required–may be the best path.

“This whole area is gray, and that's why I suggest you take the legalisms out,” Segal says. “If it's reasonable, do it.”

Christine Drake struggled with mental illness all her life, finally getting off public assistance when she took a job as a barista at a Seattle Starbucks in September 2001. With support from her supervisors, including extra training and time to practice making new drinks, Drake, 34, got good reviews and felt confident about her duties, though she suffers from bipolar disorder, major depression and borderline personality and attention deficit disorders.

The accommodations ended when a new manager took over in August 2003. Instead of bending the rules for Drake, the manager allegedly berated her in front of customers,

decreased her hours and finally, in May 2004, fired her, saying, “You're not Starbucks material.”

Drake took her case to the EEOC, which in September filed suit against Starbucks Coffee Co. in federal court in Seattle, alleging violations of the ADA. In its response, Starbucks argues Drake is not a qualified person with a disability and denies it discriminated against or fired her based on the alleged disability.

The Starbucks case is a high- visibility example of a growing problem for employers: complying with ADA and FMLA rules protecting employees with psychiatric disorders, while sorting out claims that are merely a cover for poor performance.

“As the stigma of mental illness diminishes in society, employees may find less reason to conceal such illnesses on the job,” says Jonathan Hafen, partner in Parr, Waddoups, Brown, Gee & Loveless. “In fact, some may try to exploit coverage under the ADA as a way to change their jobs or work environments.”

Questionable Absences

Navigating between the obligation to provide reasonable accommodation or unpaid leave to help employees deal with mental illness and protecting the company's legitimate business interests can be tricky business. People with psychiatric problems frequently have performance and attendance issues. They also may have problems getting along with supervisors or co-workers.

But each case must be evaluated on its merits. Sometimes a leave for treatment or a reasonable accommodation can result in a productive employee, as the EEOC claims Drake could have been in its case against Starbucks.

“All Ms. Drake needed was a modest accommodation so that she could continue to work to her fullest potential,” says Joan Ehrlich, director of the EEOC's San Francisco district office. “Employers must remember that disability does not mean inability.”

Unfortunately for employers, determining whether an employee has a legitimate disability that qualifies for legal protection under the ADA or the FMLA is not simple. Each of the federal laws sets a different test for qualification, and many state disability laws have their own standards.

The FMLA sets a relatively low bar. Because most mental illness qualifies as a “chronic health condition” meriting unpaid FMLA leave, employees usually can get a doctor to certify their need for time off. Often they are certified for intermittent leave, which can be especially burdensome for the employer.

“People will arrive in the middle of the day and say stress is triggering their disorder and they need to see a doctor,” says Bryant McFall, shareholder in Ogletree Deakins. “If the employee is taking a few hours here and a few hours there, there can be constant coming and going.”

An employer that doubts an employee qualifies for a leave can challenge the medical certification by getting second or third opinions from a doctor of its choosing. But once the employer grants an intermittent leave, he or she can't challenge the medical certification.

“If you later wonder if absence every Friday afternoon is really related to depression, you are between a rock and a hard place,” says Susan Fentin, partner in Skoler, Abbott & Presser.

Close Calls

The ADA sets a higher standard than the FMLA, requiring employers to accommodate employees only if the mental impairment “substantially limits a major life activity.”

“Whether a person has a disability is often a close call,” says Jonathan Segal, partner in WolfBlock. “If someone has major depression but it does not affect a major life activity, he is not disabled. But if you conclude the individual is not disabled and you are wrong, you lose.”

In fact, most ADA suits revolve around whether an impairment substantially limits a major life activity, not whether an individual actually has an impairment.

“This area continues to be controversial,” Hafen says. “There is a fair amount of disagreement in the courts over what constitutes a major life activity and whether there needs be a strong connection between the limitation, the life activity and the workplace.”

The courts have helped employers by distinguishing between mental illnesses, such as bipolar disorder, major depression, schizophrenia and alcoholism, which qualify as a disability, and personality or behavioral problems, such as not getting along with co-workers or supervisors, poor concentration or poor judgment, which do not qualify.

But tricky areas remain, such as the ADA provision that protects a person “regarded as” disabled.

“A manager would never say a person seems like he has cancer,” Segal says. “But he might say, 'he's nuts,' or 'she's crazy' or 'he's paranoid.' We use clinical labels very casually. An employee can say, 'If you thought I had a problem, you should have accommodated me.' Or if you take action against him, he can claim it is because of the condition you thought he had.”

Taking Action

On the other hand, employers often err on the side of caution in dealing with emotionally unstable employees who can't do the job, ignoring the fact that the law only covers employees who are capable of performing the “essential functions” of the position.

“Many employers are scared to do anything,” says Kara Shea, partner in Miller & Martin.

“They assume the employee is protected. But if you document their issues and are able to prove they can't do the job despite the accommodation, then they lose protection.”

While employment attorneys preach treating and documenting all employees' performance problems consistently, they acknowledge that employers face complicated issues with employees who can do the job, but are difficult to work with.

“With psychiatric disabilities, it is often difficult to measure performance problems,” Segal says. “Someone may be able to achieve the outcome, but may create issues along the way.

“

Segal says that because the issues involving the legal rights of mentally ill employees are so complex, he counsels employers to first consider the accommodation the employee is requesting. If it is reasonable and not disruptive to the business, providing the accommodation–whether or not it is legally required–may be the best path.

“This whole area is gray, and that's why I suggest you take the legalisms out,” Segal says. “If it's reasonable, do it.”