BY PETER HICKS
SEPTEMBER 2015
Mental health issues are impacting today’s workplace more than ever. According to the Center for Disease Control and Prevention, more than 18 million American adults, or 9.5 percent of the adult population, will suffer from a depressive illness. Approximately 80 percent of such individuals report some level of functional impairment and 27 percent report serious difficulties in work and home life. In a three-month period, employees with depression miss an average of 4.8 workdays and 11.5 days of reduced productivity.
Most employers are generally aware of their obligation to accommodate physical limitations that qualify as disabilities under the Americans with Disabilities Act (“ADA”) and Oregon law if the accommodation will not result in an undue hardship on the employer. Do employers have the same obligation to accommodate limitations when they result from mental health conditions? Absolutely.
The ADA and its Oregon counterpart, ORS Chapter 659, define a person with a disability as an individual who has a physical or mental impairment that: (a) substantially limits one or more major life activities; or (b) has a record of such an impairment; or (c) is regarded as having such an impairment. “Major life activities” are activities the average person can perform with little or no difficulty, including activities related to self-care, ambulation, communication, employment, and the ability to acquire, rent, or maintain property. This broad general definition includes activities that can be particularly impacted by mental health issues, including learning, reading, concentrating, and communicating.
The Equal Employment Opportunity Commission (“EEOC”) enforcement guidelines identify a number of mental health conditions that may be considered disabilities, including major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive-compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. These conditions are difficult to recognize and their impacts on performance are hard to quantify. The five tips below are intended to assist employers in identifying accommodation issues related to mental health conditions and complying with their obligations under the ADA and Oregon laws.
1. Have a Clear Policy to Request Accommodation.
To trigger a duty to accommodate, the employer must be aware of the disability and need for accommodation. The burden of making the disability known and requesting accommodation is on the employee. Employees are not required to use magic words to put the employer on notice however. A request for an adjustment to the workplace or change in schedule due to a physical or mental condition is likely enough.
To avoid potential accommodation issues going unrecognized, implement a clearly defined procedure for employees to request accommodation. A point of contact should be identified for making accommodation requests, and employees should be directed to submit all requests through that designated contact. Requests should be permitted orally or in writing, but written requests should be encouraged. One easy way would be to create a designated e-mail address such as “accommodations@yourcompany.com” that is regularly checked by someone qualified to field accommodation requests. Finally, a regular procedure for evaluating requests, including steps taken to complete the evaluation process, should be put in place and consistently followed.
2. Maintain Accurate and Up-to-Date Job Descriptions.
Assessing the reasonableness of a particular accommodation requires a determination of the employee’s ability to perform the essential functions of the job. Maintaining accurate, up-to-date job descriptions listing the physical and mental capacities required to adequately perform the job is therefore crucial. Job descriptions should be based on objective, measurable criteria and list functions that are required to perform the job. Supervisors and employees should be asked to regularly update and verify job descriptions to ensure they accurately represent the true essential function of the position.
3. Understand the Employee’s Restrictions.
Employers are entitled to obtain medical documentation to verify the existence of the condition and any necessary restrictions. Any accommodation must be reasonably expected to allow the employee to perform the essential functions of the job. However, an accommodation that creates an undue hardship on the employer is not required.
Evaluating an accommodation request requires a clear understanding of the true nature and extent of the employee’s restrictions in the context of the employee’s job. With the employee’s consent, medical providers should be provided with relevant job descriptions and comment on the employee’s capacity to perform the essential functions of the position. If the employee is unable to perform those functions, the provider should be asked to list any restrictions necessary. If the restrictions provided are unclear, employers are permitted (at their own expense) to request fitness for duty evaluations.
4. Consider All Accommodation Options.
Upon receipt of a request for accommodation and verification of disability, the employer is required to engage in the “interactive process.” This usually requires a face-to-face discussion, or series of discussions, with the employee and supervisors to explore potential positions the employee can perform with or without accommodation. If accommodation is required, the employer must assess whether the accommodation would result in an undue hardship on the employer, and explore alternatives that may be available but which do not cause such a hardship. Communication between the employer and the employee and consideration of all accommodation options is critical during this process. Employers must always bear in mind that the process is called “interactive” for a reason. A failure to fully engage in the process and communicate throughout will not be looked upon favorably.
5. Be Consistent.
As with all employment policies, employers should take care to apply and implement accommodation policies consistently with all employees. Consistent application is absolutely necessary to avoid claims of disparate or unfair treatment. Completing all steps in the interactive process and discussing all potential options with the employee, including those accommodations suggested by the employee, will minimize the potential for claims that the employee was not offered an opportunity to fully participate and offer input.
