If Susan Hawk Wasn't DA, Wouldn't She Have Been Fired by Now?

Yesterday afternoon Dallas County District Attorney Susan Hawk belatedly offered an explanation for her mysterious three-week absence from her office, announcing in a statement that she was battling a "serious episode of depression" and that, to more effectively cope with the disease, she would be taking an unpaid, four-week leave of absence. For the moment at least, this has pretty effectively muted criticism of her erratic behavior, with supporters like Republican Party chair Wade Emmert and state Representative Jason Villalba lauding her "courage for coming forward and disclosing her illness" and warning political opponents not to make partisan hay of her condition, respectively. The Dallas Morning News, which had two days earlier opined that "Dallas County taxpayers who pay her salary deserve better than an empty chair in her office," did an about-face and, with a self-congratulatory reference to the paper's "Erasing the Stigma" initiative on mental illness, praised her for taking time off.

And maybe that's the right sentiment. Depression is a serious, sometimes debilitating illness that is poorly understood and, to the average non-sufferer, is likely to be perceived as a personal failing rather than a legitimate medical condition. That said, it's hard not to wonder what would have happened to Hawk had she been a rank-and-file worker — a Wal-Mart greeter or a corporate office drone or a low-level lawyer in her own office — rather than an elected official who is essentially unfireable for the next three-plus years. Actually, no, that's not right. What's hard not to wonder is at what point during her three-week absence, which the Morning News reporting suggests was a mystery to everyone in her office, she would have been canned.

Generally speaking, employers can't just fire or punish workers for suffering from depression. Under the Family Medical Leave Act, employees are entitled to 12 weeks of unpaid leave to deal with a "serious health condition that makes the employee unable to perform the functions of the employee's position." The law defines "serious health condition" as "an illness, injury, impairment, or physical or mental condition" that requires inpatient care or continuing treatment by a health care provider, a definition that pretty clearly encompasses severe depression.

But it's not quite that simple, says Amanda Reichek, a Dallas employment lawyer. "The way it works in the regulations, they define 'serious health condition' with respect to what kind of treatment you're getting," Reichek says. For the FMLA to apply, she would have had to be in the hospital or getting some other sort of ongoing treatment. "Let's say she's just at home sitting around. That's not going to be covered by FMLA because she's not being treated by a physician." Matthew Scott with the Kendall Law Group says seeing a mental health professional once a week for therapy or medication management would be enough to qualify as treatment under the FMLA. Hawk's statement describes the past three weeks as a "break from work" and references treatment in the future tense, but we don't know what kind of treatment she was or wasn't getting.

Were Hawk an ordinary employee, she would face additional hurdles as well. Though FMLA leave is an entitlement, meaning that it's incumbent on employers to proactively offer time off to workers suffering from a covered health condition, the law does not require them to read the employee's mind. "The employee still has to put them on notice that they have a serious health condition ... If she doesn't provide them notice, then she's just AWOL," Reichek says. (Again, we don't know for sure that Hawk didn't notify anyone of her depression, not that she would have had to. She's an elected official; she can do what she wants.)

More problematic still would be the FMLA requirement that an employee be on the job for 12 months before being entitled to the 12 weeks of leave. Since Hawk has been in office only eight months, the FMLA calculus becomes much simpler. "She hasn't been there for a year," Scott says. "She wouldn't have any job protection from the FMLA at all."

The other federal law that might apply were Hawk not an elected official is the Americans With Disabilities Act, which offers protections to employees regardless of tenure. Under the ADA, employers must make a "reasonable accommodation" to employees who can prove that they have "a physical or mental impairment that substantially limits on or more major life activities." This definition, like the FMLA's, can include severe depression, and Reichek says that an "absence from work can be a reasonable accommodation under the ADA. But the ADA's protections are less robust than the FMLA's, as employers don't have to grant requests for accommodation if it would be an "undue burden." "If Susan Hawk said 'I need to take five weeks off work to address my depression,'" the ADA would require her employer to work with her to accommodate her illness, but the employer wouldn't necessarily have to grant her five weeks of leave. As with the FMLA, communicating the illness up front is key. Employers have free rein to fire people who stop showing up to work with no explanation.

Scott says that employers tend to be pretty good about recognizing depression and mental illness as legitimate health conditions subject to the FMLA and ADA. In his experience, the employee is typically the one who screws up. "Rather than going through the process, they fall into a hole and don't communicate," Scott says. "At some point, you've got to get help, and if you can't get help ... at some point you're going to lose your job." Unless, of course, you're an elected official like Hawk with three years left on your term. "She has a luxury that most folks don't have."