Mental Health and the Workplace — Accommodations

24 November 2014 Labor & Employment Law Perspectives Blog

Depression. Anxiety. Bipolar Disorder.

These and similar mental health diagnoses may affect your boss, the CEO of your company, the head of HR, your assistant, two of your peer workers, or maybe even you.

And their symptoms may also affect how well employees perform their jobs. Just as with physical disorders, mental disorders that rise to the level of qualifying as a “disability” under the Americans with Disabilities Act (and similar state and local laws) require the employer to provide accommodations to allow the employee to perform essential job functions. This article explores some of the steps you should be taking as an employer of someone with a mental disability — and the first step is to start the process with patience. As a wise colleague of mine recently told me, “Patience is a weapon. Use it aggressively.”

As with physical disorders, mental disorders take many forms and express themselves at work in many different ways. Certain employees may become withdrawn, maybe not even coming to work; others become hostile, “obnoxious,” acting out. Some employees may have trouble remembering; others, who previously had been “well mannered,” may say inappropriate things to co-workers or clients, patients, or customers.

As is apparent from these examples, there is no “one size fits all” way of addressing the need for a workplace accommodation. That leads us to lesson number two: every time you deal with an accommodation issue — while you should always draw on past experiences to guide you — you should remember that each employee medical situation is unique, and you will need to carefully explore the particulars of that specific employee’s essential job functions, how the mental disorder is affecting him or her, and which types of reasonable accommodations may exist.

Here are some additional practical steps to help you through the process:

  • Start with any written job descriptions for the employee’s position to see what your company has listed in writing as essential job functions for the position. For example, is attendance in the workplace essential? If not, could the employee reasonably work from home some (or all) of the time? Make sure the written job description (and actual practice) does not contradict a claim that the employee must always be at work.
  • Speak with the employee’s direct supervisor(s) (or others, as appropriate) to find out more about any essential job functions that may not be written down.
  • Since it is unlikely a mental disorder is going to be apparent (unlike, say, a severed limb), the ADA will allow you as employer to obtain documentation from the employee’s health care provider to verify that the employee has a covered disability and also the need for reasonable accommodation  (see question number 6 in the linked EEOC guidance). Your attorney could help you properly obtain such documentation from the employee.
  • Call (or contact online) the Job Accommodation Network, a free and confidential resource set up by the federal government, to ask for suggestions on possible reasonable accommodations. Document your communications with JAN.
  • Meet with the employee — probably several times — in order to engage in the “interactive process.” These meetings, attended by HR, the supervisor(s), and any leave administrators, are meant to discuss possible solutions. Document all of these meetings. If the employee is being difficult and not helping to come up with solutions, document it. The initial meetings should be seen as brain-storming sessions. The final meetings should be designed to obtain buy-in from all of the stakeholders — including the employee and supervisors — on how any accommodations will work.
  • Document your agreed-upon accommodations and have the employee sign an acknowledgement agreeing to them. Most accommodations will need to be re-visited from time to time, to ensure they are working. Make sure to document to the employee that you will possibly need to modify the accommodations depending on business needs.
  • HR or leave administrators should follow up periodically with both supervisors and the employee to find out how accommodations are working (or not). Document all follow-up meetings.
  • If accommodations are not working, renew the interactive process. It is possible that a reasonable accommodation is not available that will allow an employee to perform the essential job functions. If so, terminating the employee may be the most appropriate option. You should only be making this determination after going through most or all of the steps above.
  • Remember the very first point of advice through all: patience is a weapon — use it aggressively.
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