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The rise of mental health disabilities in the workplace

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By Declan Leonard and Nick Johnson

mental_mainTen years ago, it was not entire­ly clear whether an employee suffering from a mental health disorder was considered to have a “disability,” as defined under the Americans with Disabilities Act. In fact, there were a number of deci­sions from federal courts around the country during this time pe­riod holding that medically diag­nosed mental conditions such as depression and bipolar disorder were not considered “disabilities” under the ADA. However, with the passage of the ADA Amendments Act of 2008—an act that Congress expressly stated should be inter­preted as broadly as possible to expand coverage to employees with disabilities—many mental ill­nesses undoubtedly now fall within the definition.

The expansion of coverage, coupled with the rise in national attention and medical diagnoses for these mental illnesses, has led to a notable uptick in employers (and, in turn, courts) handling mental health disor­der claims in the workplace. In response to this rise in mental health claims, the Equal Employment Opportunity Commission re­cently issued a resource document entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” Although this document provides guidance to employees facing issues related to mental health, employers can glean sev­eral takeaways from this document, as well as from recent court opinions about how to best handle mental health disorders in the workplace.

Reasonable accommodations not what they used to be

Unlike physical disabilities, mental dis­orders can go unnoticed, be episodic in na­ture and can themselves cause employees to be uncommunicative. These natural symptoms of mental health disorders pose unique challenges to today’s employers. Ac­commodations to address common physical disabilities may include modifying office equipment, a wrist pad for carpel tunnel syndrome or the often implemented ergo­nomic chair. Conversely, with mental health issues, traditional workplace modifications are usually insufficient to accommodate the affected employee. Employers are now faced with requests to telework, take extended leaves of absence and alter work schedules. A recent lawsuit brought by the EEOC shows how far these accommodation re­quests can go. In what appears to be the first of its kind, the EEOC earlier this year filed a lawsuit against a national trucking com­pany; the EEOC claimed that this company violated the ADA by failing to accommodate a truck driver’s request to have his emotion­al support dog accompany him while driv­ing his routes. The truck driver claims to suffer from post-traumatic stress disorder and his emotional support dog helps con­trol his anxiety. When the company cited its “no pet” policy in denying the truck driver’s request to bring his support dog with him on the road, the EEOC responded by filing suit. The EEOC claimed the emotional sup­port dog was a reasonable accommodation request under the ADA, and thus, the com­pany should have accepted this accommoda­tion. This case highlights how the definition of “reasonable accommodation” continues to expand with the rise of mental health-relat­ed protections. Employers should be mind­ful not to stick to rigid accommodations of the past.

Be interactive

Once an accommodation request is made, the law requires employers to engage in an interactive process with the employee to understand the employee’s limitations as a result of the disability and how it affects performance of the essential job functions. Notably, while the employer should take the employee’s requested accommodation into consideration in determining a forward plan, the employer is not bound to it and can consider other options. However, the employer must refrain from playing doctor, and should instead focus its inquiry on what is needed to help the employee perform the job.

Telecommuting is a perennial requested accommodation for mental health disorders, but the ADA provides no bright-line yes or no here. A recent federal appeals court held in favor of Ford Motor Company, for instance, dismissing the EEOC’s argument that the company violated the ADA by rejecting a disabled employee’s request to telework. Ford successfully defended its decision to deny this accommodation by pointing to the fact that regular and predictable at­tendance was an essential function of this particular job. The court emphasized the fact that Ford met with this employee on multiple occasions and explained to the employee why they were unwilling to al­low her to telework, yet remained willing to discuss alternative accommodations. Although Ford probably could have tak­en it a step further and proposed its own suggested accommodations, the fact that the court found no violation shows the importance of engaging your employees in a meaningful dialogue tailored to how the requested accommodation will impact performance of the essential functions of the job at issue.

Don’t rely on myths or stereotypes

The EEOC notes that, when dealing with employee mental health disorders, as with disabilities as a whole, employ­ers should not base decisions on common myths or outdated stereotypes. While employers and HR may have general assumptions about certain medications or how mental health disorders may manifest themselves in the workplace, the EEOC—and, more importantly, the courts—make it very clear that individ­ualized assessments must be performed in making accommodation decisions. Companies have found themselves in hot water when they disqualify an employ­ee or reject an accommodation based on “company policy” or on generalized as­sumptions about the disorder. Instead, employers must make a case-by-case, individualized assessment of an employ­ee’s ability to safely perform the essential functions of the job using objective evi­dence.

What should employers do?

  1. Maintain Accurate Job Descrip­tions. Job descriptions can be an em­ployer’s best resource when determin­ing whether something is an essential function of the job. Employers must take pains to ensure that their job descrip­tions are accurate and comprehensive, such that, when determining whether an accommodation is “reasonable,” they can point to the written job requirements.
  2. Centralize Your Processes. Make sure your handbooks designate a partic­ular person to receive accommodation requests, preferably a human resources professional. Having processes where em­ployees understand whom to talk to not only provides consistency, it also preserves confidentiality for these sensitive issues.
  3. Document, Document, Docu­ment. From the moment an employer starts the interactive process with the employee, be sure to document all meet­ings, suggestions and efforts made by the company to accommodate. Recent case law indicates that proper documentation showing the multiple efforts made by an employer to work with an employee can be an employer’s best defense in denying an otherwise unworkable accommodation.
  4. Privacy Considerations. Employ­ers must also be mindful of when they ask questions about an employee’s men­tal health condition. Generally speaking, employers are only allowed to ask about a mental health condition (a) after an employee requests a reasonable accom­modation or (b) after a job offer has been extended and the employer asks the same questions to all employees.
  5. Be creative. Mental health disor­ders affect people in all different ways. Employers must remain flexible in their approach to working with disabled em­ployees and recognize that courts will expect employers to be willing to think outside-the-box when evaluating accom­modation requests.

leonard_hedDeclan Leonard

is a founder and Man­aging Partner of Berenzweig Leonard. Declan works with companies and executives in the Washington metropolitan area and throughout the United States on employment and business law matters. Declan has consistently been named one of the region’s “Legal Elite,” and has been repeatedly selected a “SuperLawyer” in the areas of employment and labor law. He is an experienced trainer in HR matters, and attained a Senior Professional in Human Resources (SPHR) certification, the highest certification in the field of human resources. Look for Declan’s regular contributions to the Work Advice employment column in The Washington Post. He can be reached at dleonard@berenzweiglaw.com or (703) 760-0469.

johnson_hedNick Johnson

is a senior associate attor­ney at Berenzweig Leonard, and is an experienced litigator representing clients in the full spectrum of employment litigation matters, in addition to advis­ing management and executive clients on HR com­pliance, restrictive covenants, employment contracts and HR policies, investigating employee complaints and conducting anti-discrimination training semi­nars. Nick has been recognized in the honorary list of “Legal Elite” in the Washington, D.C., region, and has been regularly selected as one of the Washington Area’s “Rising Stars” by both Virginia and Washing­ton, D.C.’s SuperLawyers. He can be reached at njohnson@berenzweiglaw.com or (703) 462-8603.


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