According to the U.S. Equal Employment Opportunity Commission, 1 in 5 adults in the United States experienced a mental health issue in 2020. Anxiety disorders lead among mental health challenges, the National Alliance on Mental Illness found, with major depression and post-traumatic stress disorder following in second and third place.
These challenges haven’t escaped the notice of HR leaders, and many are adjusting their benefits offerings to address workers’ needs. But employers also may need to consider mental health from a compliance angle and make sure they know how to abide by federal law when an employee reports a mental health issue that is interfering with work.
Sharon E. Rennert, senior attorney advisor for the EEOC’s ADA/GINA division, presented on how employers should approach workers with mental health disabilities in light of the Americans with Disabilities Act, during a webinar hosted Aug. 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 substantially limits one or more major life activities.” The phrase “substantially limits” can be “very broadly construed,” 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 lasts only several months.”
In fact, she noted, many mental health disabilities are brief or cyclical in nature. One worker may struggle with panic attacks for a period of a few months, and never experience them again; another may have anxiety and experience brief flare-ups a couple times a year. Regardless, both may have a mental health disability if their condition interrupts major life activities — no matter how briefly.
2. Mental health disabilities should be assessed individually.
Mental health issues can manifest in a wide variety of ways. As such, employers should resist using a predetermined playbook across different people with the same condition.
While one employee with depression might need to work from home for a time, another might prefer to be around people and want to work more therapy appointments into his schedule. Always consult with the employee individually. “If you know anybody with these types of mental health disabilities, you don't want to use that as your touchstone,” Rennert said.
3. Disregard positive impact from mitigating measures.
A worker with a mental health disability might have a variety of mitigating measures to help her deal with the condition: medication, medical supplies or equipment, behavioral therapy. The use of such measures should not discount the disability. “A lot of people with mental health disabilities do take medication. And we have to, if you will, pretend they're not … if we're judging whether someone is substantially limited in a major bodily function or a major life activity,” she said.
Medications and therapy may not completely eliminate the problem, Rennert noted. Such measures can be helpful, but they don’t subvert the need for the standard ADA processes, if requested by an employee. “Under the ADA and [in] assessing whether something is substantially limiting, we look at the period when it is active,” Rennert said.
4. EEOC has outlined some mental health conditions ‘easily’ are disabilities.
The EEOC has already outlined some conditions that should “easily be concluded … will, at a minimum, substantially limit … major life activities.” 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 qualifying conditions, “you're not going to find someone who doesn't meet the definition of disability … by the very nature of these particular impairments,” Rennert said.
In cases in which a disability is not obvious — as is the case with most mental health disabilities — employers are within their legal right to ask for proof through documentation. For the conditions listed above, however, it would be difficult to argue against a disability case if evidence of the condition is in hand.
5. Reasonable accommodations can be almost anything.
For most people with mental health disabilities, requests for accommodation usually have to do with job performance, Rennert said. When helping settle on reasonable accommodations, employers can consider nearly anything. “When I'm doing training just on this topic, it’s often easier to illustrate what's not a form of reasonable accommodation than what can be considered,” she said.
Job restructuring, modified work schedules, modified workplace policies and telework are a few examples of possible accommodations. Supervisors should avoid thinking that changes that inconvenience them are out of question. “When it comes to reasonable accommodation, as a manager, my comfort level or how I like to have things done or the way I'm used to having things done — none of that amounts to undue hardship,” Rennert said.
6. It’s best to approach the interactive process via conversation — not forms.
“I am always a little nervous when I hear about any employer’s interactive process where it's all done at arm's length, by which I mean through forms,” Rennert said. “Individuals fill out this form, the employer takes it, they review things, maybe you request some documentation … through email communication or another form, but there's never any talking to each other. And I think that that's often a very vital component.”
Speaking to the worker can help broaden out the “why,” deepen the employer’s understanding of how the condition may complicate their experience in the workplace and what kind of accommodations might work — or not work.
7. The interactive process can protect the employer.
The interactive process, in which the employer and employee work together to find an appropriate accommodation after the employee has disclosed a disability, is not always legally required, Rennert said — but it’s in the employer’s best interest. The process “is there for the employer, and an employer that doesn't use the process and just makes the decision [risks] making the wrong legal decision,” she said. “And that may be that you fail to provide any reasonable accommodation — that you substitute what you want to provide instead of what the person is asking for.”
It’s not always wrong to suggest a different accommodation than a worker wants, Rennert said, but it should be something that is agreed to jointly and there should be a legitimate reason for the swap.
8. AI decision-making 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 candidates and has been programmed to reject applicants who indicate they have had a significant gap in their employment history.
If someone has a significant gap due to needing mental health treatment, “you really are having to hone in on, ‘What does this gap in employment history tell me about this person's ability to perform one or more essential functions?’” Rennert said. “Suppose it turns out it was 20 years ago. Let's say the significant gap is six months. So … for the past 19 and a half years, no, there have been no significant gaps in employment history. Everything else in this person's resume, everything else in their qualifications, [shows] they can perform satisfactorily all essential functions of the job. It means you cannot justify the chatbot having screened them out.”
Before designing or buying specific tools, Rennert suggested that employers ask, “Was this pre-tested on individuals with a wide range of disabilities?” Only using AI tools that are strictly necessary is another option.