Brand Story – Mental health issues can influence employees’ well-being, morale, and productivity, but that is not the only potential impact on the workplace.
Mental health issues can also implicate employers’ legal obligations under both the Americans with Disabilities Act and the Family and Medical Leave Act. Many employers are aware of their responsibility to identify physical limitations and engage in the interactive process to accommodate their employees, but with mental and cognitive issues being so unpredictable and largely inconspicuous, employers face unique challenges recognizing and accommodating mental issues that qualify as a disability, and this is particularly true in Oregon.
Even before the outbreak of COVID-19, studies showed one in five Americans experienced mental illness or cognitive issues. Now, according to Mental Health America, Oregon has the highest prevalence of mental health issues in the country. The added stressors of quarantining, working from home, and pandemic-related causes of workplace stress have no doubt compounded these concerns. As many employers begin contemplating return to work policies, identifying and addressing employers’ legal obligations to accommodate mental health conditions will remain one of the most challenging legal minefields to navigate in 2021.
Identifying the presence of a qualified mental disability, particularly in a remote work environment, is challenging. It is common for people with mental or cognitive issues to be unaware of either their condition or its impact on their work (or both). As a general rule, employers are not required to speculate as to what may be causing an employee’s difficulties at work.
An employee does not need to make a specific request before an employer is obligated to engage in the interactive process to assess what, if any, reasonable accommodations may be provided that do not create an undue hardship. Once you become aware that a medical condition may be impacting an employee’s performance or workplace problems, you will want to begin the interactive process to identify whether the ADA is implicated (taking into consideration whether to make an appropriate request for medical documentation), and, if so, to implement appropriate accommodations. Merely noticing certain traits or behaviors like chronic lateness, poor judgment, or irritability is generally not an indication that a medical condition is causing workplace issues and does not trigger an employer’s responsibility to engage in the interactive process, so don’t jump to conclusions or ask if an employee has been to the doctor or counselor based on a hunch.
When engaging in the interactive process, it is more effective to begin with expressing a concern for the employee and asking open-ended questions seeking to elicit information about how the company can help the employee be successful. From a compliance perspective, this is the preferred approach because an employee perceived to be disabled qualifies for disability protections, even if they do not actually have a disability. These open-ended questions will also help employers gather information to assess whether an employee’s mental health condition (such as seasonal affective disorder, depression, anxiety, obsessive-compulsive disorder, or some other condition) qualifies as a disability.
During the interactive process, employers do not exhaust their obligation to participate in good faith simply because an employee fails or refuses to respond after one attempt to contact them. Employers should thoroughly document these interactions and make a second or third attempt before concluding that the employee is not cooperating.
Additionally, even if the employee cooperates and requests a specific accommodation, employers are not required to allow the employee to choose the accommodation they will receive if another effective accommodation is also available. Often, however, short-term or intermittent unpaid leave is considered to be a reasonable accommodation, even if it causes scheduling issues. In fact, an employer may also be required to grant such a leave request if the employee’s mental issues qualify as a “serious health condition” under the Family and Medical Leave Act (and generally, when a mental health condition qualifies as a disability, it can be assumed it will also qualify as a serious health condition that gives rise to job-protected leave and/or sick time).
To learn more about how to identify whether a mental health issue qualifies as a disability and if accommodations may be reasonable, join Barran Liebman employment attorney Sean Ray at 10:00AM on June 8, 2021, for his webinar on “Managing Mental Health in the Workplace: Navigating ADA, FMLA, & Other Accommodations Laws.” Register at barran.com to learn about the range of employer responsibilities when it comes to employee mental health in the workplace.
Sean Ray & Josh Goldberg
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