What do American employers owe their employees with mental health conditions

Ocean with hand reaching out of water towards dark clouds
This situation will become more prevalent thanks to the pandemic.

This article will start with a general discussion on accommodations and then move on to the specifics of a mental health condition.

Is the employer required to provide accommodations?

Unless one of the following extremely narrow conditions applies, employers must “engage in the interactive process,” which means talk to the employee when an accommodations request is made.

1. The employer is too small

All employers with fifteen or more employees have a duty to provide reasonable accommodations such as assistance or changes to a position or workplace that will enable an employee to do their job despite having a disability. If you have less than 15 employees, you are exempt from the requirement to provide reasonable accommodations UNLESS your state has a local law that triggers accommodations with fewer employees. For example, the California Department of Fair Employment and Housing starts requiring reasonable accommodations with the fifth employee. So tiny employers might be exempt from the requirement of providing n accommodation. Even then, they are never exempt from:

a. Retaliation claims made by the employee for making the request;

b. Bad publicity resulting from the employer denying the request;

c. Lower employee productivity and morale after the request is denied;

d. Cost of employee turnover.

2. The condition isn’t a disability

Disability is a very subjective thing. Two people with the same diagnosis and the same objective test results can have different answers to the question “am I disabled?” One person might feel that their condition is disabling. The other might not.

To be protected under the ADA, you must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, walking, breathing, performing manual tasks, caring for oneself, learning or working.

All of the following must be true for a condition to trigger an obligation for an employer to provide a reasonable accommodation:

  1. The employee must be willing to disclose a medical condition to the employer.
  2. The medical condition must meet the ADA definition of a disability
  3. Either the disability has to be visible, OR a medical care provider must be willing to provide documentation regarding the disability.

3. Providing the accommodation would cause a safety issue

This is also a very, very narrow exception. Most reasonable accommodations don’t cause safety issues. A couple of examples might include:

a. Requesting to opt-out of fire drill training because of noise sensitivity, or;

b. Requesting to be exempt from drug testing programs because the employee uses marijuana under a doctor’s supervision.

4. The employee still would not be able to perform the primary tasks of their job even with the accommodation(s) in place.

The “employee still would not be able to perform the tasks” exception primarily applies to employees who have become disabled (or whose disabilities have worsened) during the term of their employment. Otherwise, why would the employer have hired that individual in the first place? In addition, the EEOC wants to see that the employer tried to find an open position for the employee with a disability that they could do with accommodations before they are terminated. Can’t drive a forklift now? Maybe the employee is qualified for a desk job that you happen to have available.

  • Employee termination should be the last resort.
  • Employee termination without engaging in the interactive process with the employee is a lawsuit waiting to happen.

5. The accommodation poses an “undue hardship” to the employer

This is the exception that most employers trying to get out of providing a reasonable accommodation usually opt for. However, it is also exceptionally narrow, and most employers that claim that an accommodation request is an undue hardship don’t qualify for it.

The undue hardship exception, defined as an “action requiring significant difficulty or expense,” is tough to argue successfully from the employer’s perspective. Basically, the employer has to prove that the cost of the reasonable accommodation would push the employer towards bankruptcy. For almost 20 years, the official EEOC guidance on undue burdens has been this: The EEOC does not look at individual departmental budgets; they look at the employer’s total financial picture when analyzing whether the request is an undue burden. If an employer is making a profit or paying dividends, it is almost impossible to prove that an undue hardship exists.

What about contractors?

Employers should NOT assume that just because an individual is a contingent worker/contractor, they are off the hook concerning accommodations.

Several courts have said that contingent workers are entitled to accommodations, especially when those accommodations come under Section 50 (which includes things like sign language communication. The EEOC has explicitly stated that an individual’s employment status for ADA may be different than their legal status.

Mental Health conditions

First of all, the ADA says nothing about mental health conditions. The entire focus of the ADA is the *impact* the disability has on one’s daily life activities, not the source of the impact. Therefore, mental health disabilities clearly come under the umbrella as a condition where accommodations must be provided.

A whopping 23 percent of individuals with COVID are continuing to experience COVID symptoms more than a month after diagnosis, which is referred to as “long haul COVID.” This has led to mental health issues, including suicides.

The pandemic has created a significant increase in mental health conditions and worsening pre-existing conditions regardless of whether an individual has contracted COVID. That is because *everyone* has experienced the pandemic even if they didn’t contract COVID. The CDC cites some of the following psychological conditions as being linked to the pandemic.

  • Feelings of fear, anger, sadness, worry, numbness, or frustration
  • Changes in appetite, energy, and activity levels
  • Difficulty concentrating and making decisions
  • Difficulty sleeping or nightmares

Substance abuse rates are also way up during the pandemic, as is suicidal ideation.

  • 13% of Americans reported starting or increasing substance use to cope with stress or emotions related to COVID-19.
  • There has been an 18 % increase in overdoses.

While employers are NOT obligated to accommodate is illegal drug use or on-the-job alcohol use, some accommodations may be required for employees who are alcoholics.

Mental Health Accommodations

Many things come under the category of mental health accommodations. The EEOC has identified several, which include:

  1. Time off for appointments
  2. Alterations to work schedules
  3. Quiet spaces to work
  4. Work from home
  5. Changes in supervisorial approach

Can a person with a disclosed mental health condition be legally fired?

The answer is, of course. But they can’t be fired simply for having a mental health condition.

  • If the employee can’t perform the essential components of their job even with accommodations, they may be legally terminated. State or union rules may have different termination rules that have to be satisfied in some cases.
  • If the employee’s mental health condition puts other employees at risk, they may be legally terminated. Again, state or union rules may also have to be followed.

The evidence required for terminating someone with a disclosed mental health condition must be objective; it can’t be some random employer fear based on the myths surrounding mental health conditions.

What protections does an employee with a mental health condition have when disclosing their situation

Employees control their health data and who it is shared with.

  • If the employee reaches out to HR directly for an accommodation, the employee can request that the manager not be informed of the specifics about the medical condition, just the accommodation.
  • If the employee decides to disclose to the manager, they can restrict the manager from speaking to the employee’s co-workers about the disability.

What the employee can’t do is expect to be protected or receive accommodations without disclosing the mental health condition and providing associated documentation from their medical care provider.

This isn’t very clear!!!

Yes, it is subjective. The important thing is that the people implementing accommodations must keep their personal feelings about what constitutes a disability. Doesn’t matter if your Aunt Sadie was bipolar and didn’t need accommodations. If an employee comes to their employer with a medical recommendation related to any disability, including mental health, failing to engage in the interactive discussion with that employee around accommodations creates a serious and real risk.

The faster HR departments and managers come to terms with the fact that alcoholism, past drug abuse, and mental health conditions are all legitimate disabilities, the faster the company will comply with the EEOC rules surrounding accommodations to individuals with these conditions.

People with disabilities talk.

  • We talk amongst ourselves at meetups and dedicated LI and FB groups with thousands of participants.
  • We talk on GlassDoor about our experience at former employers where things went well and not so well.

A company that does a poor job with disability inclusion, including failure to provide adequate accommodations to employees (and contractors, when necessary), will find themselves losing valuable employees and candidate opportunities in a very competitive marketplace.