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We have a faculty member in my department who has mental health issues. These issues tend to flare up about three times a year, right at the beginning of the year, in January when grading is due and new teaching starts, and again at the end of the year when grading is due. In general these flair ups last about two weeks and are, to my understanding always accompanied by medical evidence that recommends a two week leave and a follow up evaluation after the two weeks. She is not the most mentally stable person at the best of times and I have no doubt that the additional stress from teaching and grading causes her additional issues. That said, her flare ups mean that her teaching generally gets cancelled and her grading gets reassigned. What type of accommodations does a department have to make for an individual who does not seem to be healthy enough, in this case mentally, to carry out core responsibilities and how does a department go about making those accommodations? I am interested in both legal and moral obligations and am located in the UK, to the extent that it matters.

  • American, non-academic information: eeoc.gov/facts/ada18.html – Anonymous Physicist Oct 8 '14 at 20:20
  • @guest my take on the ADA guidelines are you need to make reasonable accommodations, but it is not clear to me what those are. Is allowing someone only to work outside term time a reasonable accommodation? What about restructuring there job so it has no teaching? – StrongBad Oct 8 '14 at 20:57
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    In the USA, probably a lawyer would be consulted before deciding anything. – Anonymous Physicist Oct 9 '14 at 0:55
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    I am wondering whether you will get better responses over at The Workplace. I don't think that the underlying question is really all that academia-specific, and those guys have more experience with such situations than we have. – xLeitix Oct 9 '14 at 6:49
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    I think this question makes most sense on this board, given the particular features of academic employment. I don't think, "Make it so this faculty doesn't have to grade" sounds like a fair accommodation, since in essence grading is the hardest part of the job, and not something you can easily farm out to other people. Grading requires expert knowledge, and the only other experts are the other faculty who surely shouldn't be required to shoulder their colleague's workload on a recurring basis. – user10636 Oct 9 '14 at 11:01
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I am only even vaguely qualified to speak on how this is ideally handled in the USA, so hopefully this will be of use at least as a starting point. I am not qualified to say anything about similarities between UK and US law on matters such as this - and I'm not a lawyer! I think this is a very important question though, and I hate to see it going without any kind of answer at all.

In the US, there are a few related but separate pieces of landmark legislation that guide workplace accommodations for "serious medical conditions" and "disabilities" (quoted because these have specific legal definitions).

First of all, the Family Medical Leave Act (FMLA):

The Family and Medical Leave Act ("FMLA") provides certain employees with up to 12 workweeks of unpaid, job-protected leave a year, and requires group health benefits to be maintained during the leave as if employees continued to work instead of taking leave

[...]

Leave Entitlement

A covered employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave in a 12 month period for one or more of the following reasons:

[...]

  • when the employee is unable to work because of a serious health condition.

There are lots of qualifying statements, but in US academia generally the FMLA applies.

FMLA TLDR;

Specifically, this means that having to take 4 weeks off a year due to any condition legally defined as a "serious medical condition" (related to a disability, chronic physical or mental illness - see the law specifically for the definition of these terms) is not a "reasonably accommodation" at all, but a legally mandated requirement. A person who takes up to 12-weeks a year of such leave has their job protected, end of story. If this is inconvenient, the legal response is: too bad - you are a big institution, you'll figure out how to make due.

In the USA, this is really a sufficient and complete answer without considering reasonable accommodations, because taking medically necessary time off isn't considered as such.

But let's go further, because more is morally and often legally required.

Get Proactive: Reasonable Accommodations, the Equal Employment Opportunity Commission (EEOC), and the Americans With Disability Act (ADA)

In the US, a qualifying employee has the the right to "reasonable accommodations". OK - what the heck is reasonable? I'm a big fan of the Job Accommodations Network (JAN) materials, as they are much easier to read and understand than most other materials.

III.THE REASONABLE ACCOMMODATION OBLIGATION 3.1 Overview of Legal Obligations

  • An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business.
  • Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.
  • The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person's disability or job changes.
  • An employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship.
  • An employer does not have to make an accommodation for an individual who is not otherwise qualified for a position.
  • Generally, it is the obligation of an individual with a disability to request a reasonable accommodation.
  • A qualified individual with a disability has the right to refuse an accommodation. However, if the individual cannot perform the essential functions of the job without the accommodation, s/he may not be qualified for the job.
  • If the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of providing the accommodation or paying that portion of the cost which would constitute an undue hardship.

So, what is and isn't reasonable? According to JAN:

  1. What accommodations are not considered reasonable?

Reasonable accommodation does not include removing essential job functions, creating new jobs, and providing personal need items such as eye glasses and mobility aids. Nothing in the ADA prohibits employers from providing these types of accommodations; they simply are not required accommodations.

What is an essential job function? There is no easy answer, but that same page quoted above provides an in-depth discussion, however I posit this reasonable rule of thumb: something is reasonable if it is not disproportionately costly, and especially if other people in a similar position have such an arrangement. If you aren't sure, get a proper Job Evaluation performed by a competent professional (your institution had better already have one on hand!).

Many professors have grad students perform a large amount of grading (with oversight and some supervision) and often use a proctor to deliver tests, for instance - so to insist that a standard way of working for other professors is not reasonable would strain the credulity of the average person (and likely any judges or review boards, should a complaint arise). On the other hand, utterly exempting a person from duties that fill a large portion of an employees work load is probably going too far.

The law in the US is often intentionally vague in this regard, for a very good reason! The goal is actively to encourage people to think of ways to craft jobs and requirements that allow anyone with a disability or chronic condition to be gainfully employed and contribute to their communities in the greatest way possible. If this means a little re-arranging or change, great - that is way cheaper than someone getting fired or having to take legal actions against an institution. With some vagueness and a "reasonable person" standard that is common in American law, this is hoped to actively encourage people to reach out a bit farther than they usually might to find a solution that works for everyone involved.

Proscriptive Moral Advice

As an institution/department, it is generally wise to recognize a pattern and reach out to solve an underlying problem. If a build-up of stress causes incapacitation and certain reliable intervals, maybe something can be arranged to reduce the stress during these times and avoid the worst flare ups entirely? When not possible, planning proactively can wonderfully mitigate the pain in the future; implicitly relying on no one getting ill or sick during high-stress times of the year is a masochistic assumption!

It is reasonable (and often advised) to seek out if a reasonable accommodation could be helpful and welcomed by someone with a serious condition or disability. A willingness to think creatively and to find a solution that everyone can be happy about is ideal.

If a huge glut of work at certain times of the years causes anxiety, can this workload be made more manageable and less all-at-once? Are department requirements/demands worsening things and creating a more difficult environment than necessary? Electronic grading systems/options, automated fill-in-the-bubble grading, Teaching Assistants to do some of the grading (when appropriate to the work), Proctors (such as by giving the tests in some classes so the professor can use that time for grading other tests/assignments instead), and staggered test schedules are widely used to varying degrees throughout the world and can be potentially helpful. Can other duties be rescheduled, such as certain evaluations, meetings, etc, to better even out the work flow?

It is possible that one person's illness can be used as a tool to improve everyone's work conditions and satisfaction, by allowing a "suck it up and deal with it" approach that was begrudgingly accepted to be challenged and overhauled. Empathy and compassion - understanding that someone would almost invariably be happy to not be ill - and realizing that the problems of having more work foisted on everyone when someone is ill is often the fault of the work system rather than on one well-intentioned individual, can make some amazing progress possible.

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  • If I understand this correctly, if you find a compassionate/unethical doctor you might be able to reasonably avoid teaching altogether if you are only unwell on days you need to teach. If you are on a 9 month contract, you might not even have a hit to your salary. – StrongBad Oct 9 '14 at 16:53
  • @StrongBad Nope. While my answer is already pretty long, it's an extremely short summary of the legislation itself, and it has provisions to avoid such a sanction-able violation of medical ethics. The FMLA act specifically permits an employer to request/require medical certification from a licensed authority, and includes provisions for second/third opinions. So if a person can get 3 licensed medical professionals to commit multiple felony crimes, clearly and in writing, risking federal imprisonment and lifetime revocation of their right to practice medicine...yeah, sure, sky's the limit. – BrianH Oct 9 '14 at 20:22
  • Here's the specific provisions from 825.305: ecfr.gov/cgi-bin/… – BrianH Oct 9 '14 at 20:24
  • For extreme abuses, the law would permit an employer to accept a request for FMLA unpaid leave, and then require another medical certification (with multiple second opinions, usually at business/insurance cost) before a person can return to work. A person who wants to pretend to be disabled and recruits one unethical doctor could effectively either be forced to admit to their crime or stay on unpaid medical leave for 12-weeks and then not be permitted to return to work at all and thus be dismissed for being unable to continue work. Legal protection for the disabled and ill is no gravy train! – BrianH Oct 9 '14 at 20:29

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