The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.
In a recent decision, the New Hampshire federal district court reaffirmed that once an employer has actual notice of an employee’s disability, it must afford that employee the rights and protections of the Americans with Disabilities Act (ADA). The court made clear that an employer is on notice when a supervisory employee has knowledge of the disability, even if that supervisor gained knowledge of the employee’s disability prior to being promoted to a supervisory position.
This case arose in the context of a fire department but could just as easily have occurred in any municipal department. Two co-workers developed a workplace friendship. One of the co-workers disclosed to the other that he had been diagnosed with PTSD. Like other emotional health issues, PTSD can qualify as a disability under the ADA. The employee explained the symptoms of PTSD to his co-worker and described the type of situations that could trigger those symptoms, specifically unexpected criticism of his work performance or perceived threats to his job security. The employee shared that a key to avoiding PTSD reactions was effective communication with supervisors and that difficulties in communications with the then Fire Chief was problematic. The employee further explained that he was allowed time to attend therapy sessions.
The employee with the PTSD diagnosis moved on to another fire department. After his former co-worker was promoted to Fire Chief, the employee returned to his original department to work under the new chief. The new Fire Chief developed concerns about several aspects of the employee’s performance, including his driving skills, workplace communications, and unexcused absences from meetings. One or more meetings were held to discuss these performance concerns. Ultimately, the Fire Chief prepared a performance improvement plan (PIP), which he presented to the employee without prior notice. The Fire Chief proceeded to read the PIP aloud, ignoring the employee’s request that he be given time to read the PIP himself. The employee, visibly upset, excused himself from the meeting. This resulted in a disciplinary suspension and referral for a fitness for duty examination.
The court noted that the Fire Chief was aware of the employee’s PTSD diagnosis from the time that he and the employee were co-workers. That actual knowledge of a disabling condition did not disappear when he was promoted to Chief. Despite the Chief’s actual knowledge, it appears that there was no discussion of whether the disability could be contributing to the performance concerns. Further, despite actual knowledge of the type of conduct that could trigger a PTSD episode, the Chief presented the PIP in a manner that was likely to cause an adverse reaction.
Supervisors should be reminded that if they are aware that an employee may have a disability, even if such knowledge was obtained before they became a supervisor, they should seek guidance to assure that the employer is complying with the ADA. In this case, the employer might have sought information from the employee’s health provider regarding possible job accommodations and avoided those behaviors that were likely to trigger a PTSD reaction. This does not mean that an employer must accept substandard performance of essential job functions but it must explore reasonable accommodations that might help the employee to succeed.
This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.