In honor of #mentalhealth awareness day, I remind you:
There is a lot of talk these days about diversity and inclusion. And about accommodating those with disabilities. Remember: providing accommodations applies to employees with mental impairments too.
Recently, the US Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the anti-discrimination laws, has reminded employers about the significance of building a corporate culture that destigmatizes mental illness in the workplace.
Apparently, charges of discrimination based on mental health disabilities are on the rise. According to preliminary data from the EEOC, the Corporate Wellness Magazine recently reported that the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions and obtained approximately $20 million for individuals with mental health conditions who were denied employment and reasonable accommodations in FY 2016.
As a result of these stats, the EEOC published two new guidelines for employers: Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights and The Mental Health Provider’s Role in a Client’s Request for Reasonable Accommodation at Work.
The first publication explains what we have told you here—the Americans with Disabilities Act (“ADA”) prohibits employers from taking an adverse action (demotion, termination, etc.) against employees with physical disabilities and mental health impairments as long as they can perform the essential functions of the job with or without a reasonable accommodation.
The second explains the reasonable accommodation law to mental health providers.
Mental health conditions that may qualify for a reasonable accommodation are those that substantially limit one or more major life activities, including brain/neurological functions and activities like communicating, thinking, concentrating, regulating thoughts or emotions, and interacting with others. They can include:
- Major depressive disorder
- Bipolar disorder
- Post-traumatic stress disorder
- Obsessive-compulsive disorder
General anxiety disorder is often considered a disability too (but less so if it is caused by the workplace environment).
The EEOC notes that an employee may qualify for a reasonable accommodation if (s)he has or had a substantially limiting impairment, and, as I told you here, the ADA’s protection includes workplace discrimination based on perceived impairments.
The Interactive Process Is Key
Why is this important?
Well, it’s critical for mental health providers to understand how important their role can be in assisting with the interactive process. As always, document the interactive process, and understand, that engaging in the interactive process in not “one and done” but an ongoing duty.
But what if you and the employee can’t figure which accommodations might work?
To comply with the ADA, you, as the employer, need to understand how the disability affects the employee’s ability to do the job, and, with disabilities that can be “invisible,” like mental health conditions, that can be tough to do without guidance from the employee’s mental health provider who can explain the limitations caused by the mental health impairment and what reasonable accommodations might help the employee still perform the essential functions of the job.
You, as the employer, can request information, including regarding the functional limitations caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how an accommodation could alleviate an employee’s limitations, and which accommodations may be appropriate.
One in four adults in the U.S. suffer from some type of mental disability. Do you know your obligations under the law?