8 Takeaways About Mental Health and ADA From an EEOC Lawyer
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According to the US Equal Employment Opportunity Commission, 1 in 5 adults in the United States experienced a mental health problem in 2020. Anxiety disorders are the leading mental health problems, National Alliance on Mental Illness Foundationfollowed by major depression and post-traumatic stress disorder in second and third place.
These challenges have not escaped HR managers, and many are adapting their benefits offers to meet the needs of workers. But employers may also need to consider mental health from a compliance perspective and ensure they know how to comply with federal law when an employee reports a mental health issue that interferes with work. .
Sharon E. Rennert, senior legal counsel for the ADA/GINA Division of the EEOC, discussed how employers should approach workers with mental health issues in light of the Americans with Disabilities Act, during a webinar held on August 17 by XpertHR. Below are eight takeaways.
1. A temporary mental health condition can be a disability.
To refresh, the ADA defines a disability as “a physical or mental impairment that significantly limits one or more major life activities.” The phrase “limits substantially” can be “interpreted very broadly,” Rennert said. “It does not indicate that a particular condition has to be permanent, or even long-term. It can be a disability even if it only lasts a few months.
In fact, she noted, many mental disorders are brief or cyclical in nature. A worker may struggle with panic attacks for a few months and never have them again; another can have anxiety and experience brief flare-ups a few times a year. Either way, both can have a mental health disorder if their condition interrupts major life activities, even briefly.
2. Mental disorders should be assessed individually.
Mental health issues can manifest in a variety of ways. As such, employers should refrain from using a pre-determined playbook for different people with the same condition.
While an employee with depression may need to work from home for a while, another may prefer to be around people and want to fit more therapy appointments into their schedule. Always consult the employee individually. “If you know someone with these types of mental disorders, you don’t want to use that as a touchstone,” Rennert said.
3. Ignoring the positive impact of mitigation measures.
A worker with a mental health disorder can benefit from various mitigation measures to help her cope with her condition: medication, medical supplies or equipment, behavioral therapy. The use of such measures should not overlook disability. “A lot of people with mental disorders take medication. And we have to, if you will, pretend they’re not… if we’re judging whether someone is significantly limited in a major bodily function or major life activity,” she said.
Medications and therapy may not completely eliminate the problem, Rennert noted. Such measures can be helpful, but they do not subvert the need for standard ADA processes, if requested by an employee. “Under the ADA and [in] to assess whether something is substantially limiting, we look at how long it’s active,” Rennert said.
4. The EEOC has described some mental health conditions “easily” as disabilities.
The EEOC has already describes certain conditions this should “be easily concluded…will, at a minimum, considerably limit…the main activities of life.” These include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia. While this is by no means an exhaustive list of eligibility requirements, “you’re not going to find anyone who doesn’t meet the definition of disability…by the very nature of those particular impairments said Rennert.
In cases where a disability is not obvious – as is the case with most mental disorders – employers have the legal right to request proof through documentation. For the conditions listed above, however, it would be difficult to argue a disability case if proof of the condition is in hand.
5. Reasonable accommodation can be almost anything.
For most people with mental health issues, accommodation requests are usually related to job performance, Rennert said. When helping to find reasonable accommodation, employers can consider almost anything. “When I’m training just on this topic, it’s often easier to illustrate what isn’t a form of reasonable accommodation than what can be considered,” she said.
Job restructuring, modified work schedules, modified work policies and telecommuting are some examples of possible accommodations. Supervisors should avoid thinking that changes that bother them are out of the question. “In terms of reasonable accommodation, as a manager, my comfort level or the way I like things done or the way I’m used to doing things – none of that constitutes undue hardship,” Rennert said.
6. The interactive process is best approached through conversation, not through forms.
“I always get a little nervous when I hear about an employer’s interactive process where everything is done independently, ie through forms,” Rennert said. “Individuals fill out that form, the employer takes it, they look at things, maybe you ask for documents…by email or some other form, but there’s never a conversation between them. And I think that’s often a very vital element.
Talking to the worker can help broaden the “why,” deepen the employer’s understanding of how the condition may complicate their workplace experience, and what kind of accommodation might work – or might not work. .
7. The interactive process can protect the employer.
The interactive processin which the employer and employee work together to find an appropriate accommodation after the employee discloses a disability, is not always legally required, said Rennert – but it is in the best interest of the employer. The process “is there for the employer, and an employer who doesn’t use the process and just makes the decision [risks] make the wrong legal decision,” she said. “And it may be that you don’t provide any reasonable accommodation – you substitute what you want to provide instead of what the person is asking for.”
It’s not always wrong to suggest different accommodation than a worker wants, Rennert said, but it should be something that’s jointly agreed upon and there should be a legitimate reason for the exchange.
8. AI decision support tools can unintentionally screen out applicants with disabilities.
The increasing use of algorithmic decision-making tools by HR is complicating the disability discrimination landscape. Rennert noted the example of a chatbot that screens applicants and has been programmed to reject applicants who indicate they have had a significant gap in their employment history.
If someone has a big gap because of the need for mental health treatment, “you really need to focus on ‘What does that gap in work history tell me about that person’s ability to accomplish? one or more essential functions? “Said Rennert. “Let’s assume it turns out that it was 20 years ago. Let’s say the significant difference is six months. So… for 19 and a half years, no, there have been no significant gaps in employment history. Everything else in that person’s resume, everything else in their qualifications, [shows] they can satisfactorily perform all essential job functions. This means that you cannot justify that the chatbot eliminated them.
Before designing or purchasing specific tools, Rennert suggested employers ask, “Has this been pre-tested on people with a wide range of disabilities?” Using only strictly necessary AI tools is another option.