Question:
I look forward to the end of my workday, to going home, having a glass of red wine with dinner, and curling up in front of Netflix. When I accepted a position at a medical clinic, I learned that I needed to be on-call once every ten days. I thought I could handle it, and there have been no calls on most nights.
We’ve had two resignations in the last couple of months, along with a hiring freeze. As a result, each of those remaining in my department needs to be on-call at least once and sometimes twice weekly. I let the practice manager know that this is too much and not what I signed on for. He told me he can’t help the need for members of the team to be on-call should a patient need our services.
Can my employer arbitrarily change my schedule in this way when the problem could easily be resolved by lifting the hiring freeze? I don’t want to be forced to reveal that I have an underlying condition that I’ve fought for years, depression, but I’m increasingly depressed due to giving up my evening peace.
The practice manager was angry when I told him I thought he should lift the hiring freeze. I know that due to a coming resignation, a supervisory position is coming open. If I let my manager know I need an accommodation because of depression, I fear he’ll retaliate against me by not considering me for this promotion. I want to double-check that depression is a disability and that I have job protection against retaliation.
Answer:
Clinical depression can qualify as a disability under the American’s with Disabilities Act (ADA) if it substantially limits a major life activity. While not everyone who suffers from depression is protected by the ADA, the federal Equal Employment Opportunity Commission, reports that nearly seven percent of the employees who file disability discrimination charges annually claim depression.
If your depression qualifies as a disability, your employer can’t retaliate against you for asking for an accommodation and needs to accommodate you if it can do so without undue hardship. That doesn’t mean that your manager needs to excuse you from taking your fair share of on-call evenings, as employers are allowed to choose the accommodation that works for their practice. Further, in many organizations it’s the supervisor who takes on extra on-call duties when employees are out on leave.
If you push too hard against on-call work, you potentially risk your job as your employer may decide you’re no longer qualified for it. In November, 2018, a U.S. District Court ruled that overnight on-call work may be an essential job function (Porter v. Tri-health, Inc., Ohio).
Like you, Kimberly Porter worked in a medical facility, as a radiology department sonographer in a hospital. While the hospital didn’t specifically include on-call work in the sonographer’s job description, they did make it clear to the sonographers upon hire that they expected on-call work to be a significant part of their time worked. Sonographers had to be available as needed and medical emergencies could occur at any time. When Porter was placed on a medical restriction that prevented her from taking call after nine p.m., the hospital terminated her.
Your case differs from Porter’s because your on-call duty doesn’t represent a significant part of your job; however, releasing you from this responsibility might constitute an undue hardship given that accommodating you would further burden your coworkers. In the Tri-health case, Porter’s coworkers complained about the extra on-call duty that accommodating Porter required. This might also happen if your employer accommodates you by limiting your on-call. If it does, your employer will need to protect you from potentially hostile coworker backlash.
Given these variables, you’ll want to seek assistance from the Alaska State Commission on Human Rights (276-7474), the Anchorage Equal Rights Commission (343-4342) or an employment attorney before you move forward.
© 2018, Lynne Curry
Lynne Curry writes a weekly column on workplace issues. She is author of “Solutions” and “Beating the Workplace Bully” and founded The Growth Company, an Avitus company. Curry is now a Regional Director of Training and Business Consulting at Avitus Group. Send your questions to her at Lcurry@avitusgroup.com, follow her on twitter @lynnecurry10 or at www.workplacecoachblog.com.
