Anxiety condition may be disability.

Byline: ON THE JOB by Bureau of Labor and Industries For The Register-Guard

Question: I supervise an employee who is a file clerk. She always wears personal stereo headphones at work. At first she wore them only occasionally, but now she wears them constantly.

Other employees have complained to me that she is slow to respond to requests for assistance because she does not hear people asking for her help until they physically get her attention and she removes the headphones.

I'm also concerned about her not being able to hear, because our filing cabinets are mechanical and with the press of a button the cabinets fold together to save space. I don't want her to get trapped or injured between cabinets in the event the headphones prevent her from hearing the automated, moving file stacks.

When I asked her to cut back on wearing the headphones, she informed me that she has a severe anxiety condition and she needs to play relaxation music to be able to function at work. She also said that under the Americans with Disabilities Act of 1990 (ADA), I am required to allow her to continue wearing the headphones as a reasonable accommodation.

In accordance with our company policy regarding the ADA, I scheduled an interactive process meeting with the employee. But she has now informed me that she is bringing someone with her to the meeting. When I asked her who she is planning to bring, she said it was a social worker who has previously helped her cope with her anxiety issues.

I don't want to get outsiders involved - do I have to let her bring the social worker with her?

ANSWER: First, it helps to remember how the law defines a "disability" which is "a physical or mental impairment that substantially limits one or more major life activities." Now that you know that the employee has a condition she describes as a disability, you are entitled to medical certification to determine if the condition is indeed a qualifying disability under the ADA.

Everyone experiences some degree of anxiety in life, and "anxiety" by itself is not a disability. However, it is certainly possible that this employee's anxiety is severe enough to qualify as a disability. That is where the doctor's professional judgment will be critical.

Second, while there is no absolute right for an employee to have a representative at an interactive process meeting, the spirit of the ADA may be best served if you allow the social worker to participate. The purpose of the meeting is to allow for an informal exchange of ideas between the employee and the employer to explore options for accommodation. The meeting is designed to be a sort of brainstorming session to come up with solutions, not a confrontation or a hearing for each side to prove something to the other.

Thus, allowing the employee to bring someone she feels comfortable around and who the employee also obviously regards as knowledgeable about the employee's condition is probably the most sensible approach.

Allowing her to bring the social worker also minimizes any potential claims of bias in the event you have ever allowed an employee's attorney to participate in the interactive process (or if you do so in the future).

And if it is a disability, the interactive process will help you determine what other types of accommodation are available. An employer is not required to implement whatever accommodation the employee wants, if another one would also be effective. On the other hand, the only way the employer can really understand the employee's concerns is to objectively listen and be open to new ways to perform the essential workplace tasks. That is, after all, the heart and soul of the ADA.

On The Job is written by the staff of the Oregon Bureau of Labor and Industries. Contact BOLI at [phone], or BOLI, 800 N.E. Oregon St., No. 32, Portland, OR 97232, or visit the BOLI Web site at www.oregon.gov/boli/ta.