Exhaustion? Negativity? Hard time completing tasks? Are these occasional parts of everyone’s job or are they symptoms of a medical problem? The World Health Organization just announced that if you’re experiencing those three symptoms at work you have an occupational condition called burnout.

How does burnout impact employers?  

Consider this scenario: You’re faced with a doctor’s note stating that your employee has a diagnosis of burnout evidenced by symptoms like exhaustion, negativity and a hard time completing tasks. Here are several questions that stand out.

1. What issues arise under laws like FMLA, CFRA, FEHA, ADA?
2. What would a reasonable accommodation look like?
3. What if the employee is on a performance warning or performance improvement plan for problems such as negativity and failure to complete tasks in a timely way?
4. What if it is a senior employee who makes himself or herself available 24/7 by choice?
5. What if round the clock availability is a requirement of the job?  

Here’s some brief analysis of the questions.

Question One: What issues arise under laws like FMLA, CFRA, ADA and FEHA?

For covered employers, one major issue that will arise under FMLA and CFRA is whether burnout is a serious health condition that makes the employee either unable to work at all or unable to perform one or more essential functions of the job. For employers covered under the ADA, one major issue will be is burnout a physical or mental impairment that substantially limits “major life activities” such as walking, sitting, reading, seeing, and communicating?

FEHA prohibits disability discrimination in all aspects of employment. It also states that an employer cannot take any type of adverse action because the employer perceives that the employee is disabled or based in whole or in part on the employee’s disability. Another relevant requirement is that the employer make reasonable accommodation of an employee’s disability absent undue hardship

Question Two: What would a reasonable accommodation look like?

The same issue arises regularly when an employee’s doctor sends a note that the employee is “stressed.” For both stress and burnout, it’s difficult for employers to assess to what degree is all work inherently stressful or is there a way that individual stress triggers can be removed from the job and still get the whole job done?

Question Three: What if the employee is on a performance warning or performance improvement plan for problems such as negativity and failure to complete tasks in a timely way?

Analysis of this issue starts with the job description. Does it require an employee to maintain stable performance in times of opposition or adversity? Is the employee required to meet deadlines and commitments? Then the issue arises of whether the requirements of the performance document discriminate against disabled individuals with burnout diagnoses.

Question Four: What if it is a senior employee who makes himself or herself available 24/7 by choice?

What if round-the-clock availability is a requirement of the job? That begs the question of whether there a defense of undue hardship if your business is just like all off he businesses in your area? An example might be most of the companies in the Silicon Valley.

We’ve all seen studies that conclude that 24/7 availability—whether by choice or command— is a source all kinds problems including headaches, sleeplessness, irritability, exhaustion and failure to meet the requirements of the job. We’ve also listened to the stories of Silicon Valley entrepreneurs and millennials who thrive on pressure and long hours. If it is the latter, employers could seek to defend their workplace and argue it would be undue hardship to reduce the characteristics of work that most Silicon Valley employees say they thrive on.

How are you preparing for burnout notes from physicians? Thoughts welcomed.