Is OCD a protected disability under the ADA?

Gramdamn · May 2004

We have an employee with OCD. His attendance has been terrible. On occasion he will bring in a doctor's note, especially if he's out for 3 or more days. We have 42 employees and do not offer sick days. We offer personal days that must be pre-approved. Does anyone know if this person with OCD is protected under the ADA? His attendance is effecting our production. I have a call into the EEOC but they haven't returned my call. Our production manager wants to give him a written warning but we aren't sure if we should. Please help.

Susan Fentin MA · May 2004

Any physical or mental condition could be considered a disability or handicap if it is a substantial limitation in a major life activity. In some cases, OCD could definitely be considered a handicap (remember in Massachusetts the standard for handicap is judged on the pre-medicated condition.) But that's what we like to call a highly fact-dependent inquiry, meaning "it depends." The issue of whether or not it is a handicap or a disability is likely one that will be fought out in court, which is what you want to avoid. The question is whether allowing him to take occasional leave because of his medical condition would be an undue hardship. Even a handicapped individual can be expected to come to work, and if this employee is unable to come to work, he may not be "qualified" for the position. Sounds to me like you should run the facts of this one past your labor and employment counsel to be sure you don't make a mistep. Good luck.

Susan Fentin
Associate Editor
Massachusetts Employment Law Letter
Skoler Abbott and Presser, PC
(413) 737-4753 [email]sfentin@skoler-abbott.com[/email]

Gramdamn · May 2004

Thank you so much for your help.

Don D · May 2004

I would want to know from a psychiatriast or psychologist, what, in general about such a condition (no specific individual) renders him completely unable to work that day. What I know about OCD tells me that people with it are not rendered unable to work for whole periods of time. They do their jobs, just sometimes with the addition of unusual activities, such as hand washing, paper stacking, pencil sharpening, pacing about, retracing steps and activities and other such obsessions. You simply are not 'ill for the day' when you are affected by OCD. Pardon me, I cannot continue here. I think I left the iron on again this morning and must run back to the house. This happens nearly every day!

Is OCD a protected disability under the ADA?

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