As an employer, do you know if you are complying with the ADA, the American Disabilities Act? To learn more, let’s take a moment to exam a recent event in the world of tennis.
Earlier this summer, the number two ranked woman’s tennis player in the world, Naomi Osaka, withdrew from the French Open. According to her social media post, she will “take some time away from the court” one day after she was fined and threatened with harsher sanctions for skipping her mandatory media obligations.
Osaka made public her experience with depression and anxiety since winning her first major at the 2018 US Open. Osaka revealed that speaking to the media often makes her nervous.
Osaka’s withdrawal has drawn attention to the topic of mental illness in professional tennis circles and the world of sports. Notable athletes such as professional basketball player Stephen Curry and professional football player Russell Wilson posted social media comments in support of Osaka.
Hopefully, the discussions that will follow will transcend support and shed light on the problem of mental impairments. Indeed, mental health is a serious issue. According to data from the National Alliance on Mental Illness (NAMI), millions of individuals in the US are affected by mental health conditions every year.
From a human resources perspective, mental impairments create many challenges in the workplace for both employees and employers. Given the prevalence of mental illness, employers must be aware of their legal obligations regarding employees with mental health conditions.
One of the key federal employment laws that apply to mental impairments is the Americans with Disabilities Act (“ADA”). As explained below, the ADA imposes certain obligations on employers to provide reasonable accommodations to qualified individuals with a mental disability.
Complying with ADA: Mental Impairments
The ADA protects individuals with mental impairments, as well as those with physical impairments. Under the ADA, disability is defined as:
- A physical or mental impairment that substantially limits one or more of the individual’s major life activities.
- A record of this impairment.
- Being regarded as having an impairment that is not both transitory and minor.1
A mental impairment is defined as any mental or psychological disorder, such as:
- An intellectual disability
- An organic brain syndrome
- Emotional or mental illness
- Specific learning disabilities 2
Whether a mental impairment meets the definition of a disability under the ADA depends on the facts and circumstances of each individual case. Some examples of mental health conditions specifically mentioned in the ADA regulations and Equal Employment Opportunity Commission (EEOC) guidance that may qualify as a disability include:
- Major depression
- Post-traumatic stress disorder (PTSD)
- Bipolar disorder
- Schizophrenia
- Obsessive compulsive disorder (OCD)
- Panic disorders
- Personality disorders3
The Employer’s Duty to Provide a Reasonable Accommodation
What if a mental impairment meets the definition of a disability and affects an otherwise qualified employee’s job performance? If so, then the employee may be entitled to a reasonable accommodation to help the employee do the job, unless the accommodation poses an undue hardship on the employer.
The duty to provide a reasonable accommodation is one of the most important ADA requirements and is also one of the most litigated issues involving the ADA. Reasonable accommodations can take many forms including:
- Job restructuring
- Part-time or modified work schedules
- Reassignment to a vacant position
- Acquiring or modifying equipment; changing exams, training materials, or policies; and
- Providing qualified readers or interpreters
Some accommodations may be especially helpful to particular mental impairments. For example, the Job Accommodation Network (“JAN”), a leading source of guidance on job accommodations and disability employment issues, identifies these accommodations specific to stress:
- Apps for Anxiety and Stress
- Behavior Modification Techniques
- Counseling/Therapy
- Environmental Sound Machines / Tinnitus Maskers / White Noise Machines
- Flexible Schedule
- Job Coaches
- Job Restructuring
- Marginal Functions
- Modified Break Schedule
- Monitor Mirrors
- Odor Control
- On-site Mentoring
- Service Animal
- Simulated Skylights and Windows
- Strobe Lights
- Supervisory Methods
- Support Animal
- Support Person
- Telework, Work from Home, Working Remotely
- Uninterrupted Work Time
Challenging Reasonable Accommodation Issues
Complying with the ADA’s reasonable accommodation obligation can be tricky. When an individual discloses a possible disability, including a mental disability, the employer should initiate a discussion to see how it can help the employee perform the job duties. In this regard, JAN suggests employers consider asking the following questions:
- What limitations is the employee experiencing?
- How do these limitations affect the employee and the employee’s job performance?
- What specific job tasks are problematic as a result of these limitations?
- What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
- Has the employee been consulted regarding possible accommodations?
- Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
- Do supervisory personnel and employees need training?
These questions illustrate the main objective of the ADA’s reasonable accommodation obligation – to ascertain the medical problem that is causing the employee a problem and explore possible solutions.
Employer Takeaway: 5 Steps to Comply with the ADA
Osaka’s withdraw from the French Open raises awareness of a serious problem that transcends sports. Mental impairments impact the workplace.
Complying with the ADA can be difficult as there are numerous issues that may arise when an employee suffers from a mental impairment, such as:
- What exactly does the term “reasonable” mean?
- To what extent must an employee request an accommodation?
- Are there special words the individual must say to trigger the obligation to provide a reasonable accommodation?
- Does a request have to be written?
- To what extent must the employer engage in an interactive process with the individual?
- What documentation can an employer request from the individual claiming a mental disability?
- What, if anything, can an employer tell co-workers about a reasonable accommodation provided to another?
- Who gets to choose the accommodation? The employer or employee?
- Is unpaid leave a reasonable accommodation? Is indefinite leave reasonable?
Despite the complexities of the ADA, employers can go a long way to complying with ADA or fulfilling their obligations under the ADA if they take the following steps upon learning that an individual has a mental impairment that is impacting performance:
- Gather information from the employee about the nature of the disability;
- Identify the essential functions of the employee’s job;
- Understand how the mental impairment is impacting the employee’s ability to perform the essential functions of the job;
- Engage in a discussion with the employee about what you can do as an employer to help the employee perform the job duties. (This is referred to by the EEOC and courts as the interactive process). In other words, explore what accommodations the employee may need to enable the employee to perform the essential functions; and
- Provide an accommodation, if there is one, that will allow the employee to perform the essential functions of the job.
As always, please let me know if I can help.
[1] 29 C.F.R. §1630.2(g).
[2] 29 C.F.R. §1630.2(h)(2).
[3] 29 C.F.R. §1630.2(j)(3)(iii0).
Kenneth Winkler, a shareholder at Berman Fink Van Horn, helps employers navigate the employment laws and regulations that govern the workplace.
