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Accommodating Mental Health in the Workplace

The Americans with Disabilities Act (ADA), and many state laws, afford protections for employees with disabilities to promote equal employment opportunities, both in the application process and during employment. These protections include prohibiting discrimination and retaliation on the basis of disability, and require that employers provide reasonable accommodations to enable individuals with disabilities to perform essential job functions, providing equal benefits and privileges of employment. Conversations around accommodations typically focus on physical, apparent disabilities, but over time, the need to address mental health has expanded this focus.

Over the past 15 years, the disability discrimination filings with the Equal Employment Opportunity Commission (EEOC) involving mental health conditions have increased significantly. For example, in 2002 there were no complaints logged for post-traumatic stress disorder, but by the end of 2017, 1,177 complaints had been filed. Disability discrimination complaints involving anxiety increased from 649 in 2002, up to 2,196 in the last year alone. It is no wonder why so much attention is being placed on accommodating mental health in the workplace and in protecting applicants and employees from discrimination or retaliation as a result of mental health issues.

Mental health conditions under the law are treated no differently than physical health conditions. Employers therefore are required to engage in the interactive process to accommodate individuals with mental health disabilities just as they would expect to for someone with a physical disability. So, while oftentimes a disability is thought of as something that manifests through physical limitations and is easily identifiable, employers must also consider the unseen conditions that affect mental health in the workplace.

Some examples of mental health issues that employers may need to accommodate include anxiety disorders, panic disorders, bipolar disorder, depression, post-traumatic stress disorder (PTSD), schizophrenia and adjustment disorders. Mental health issues that do not require accommodations include those that manifest as illegal conduct (e.g. illegal drug use, certain sexual disorders and kleptomania).

Because mental illness affects everyone differently, even two individuals suffering from the same diagnosis, it is critical to engage with employees on an individualized basis. There is no one-size-fits-all approach, but rather, it is important to understand specific limitations. Accommodating a mental health condition will require creativity, in addition to regular monitoring to ensure the chosen accommodation is effective.

Common accommodations for mental health disabilities may include altering break schedules or schedules to accommodate therapy appointments, moving an employee to a quiet area, allowing headphones in the office, and/or modifying supervisory approaches (e.g., providing written feedback rather than verbal conversations). Employers are not required to lower production standards, reduce performance expectations, excuse conduct violations (job related and consistent with business necessity), remove essential functions, monitor medication, or employ an accommodation that would result in undue hardship to the organization. Employers need not accommodate the inability to get along with others, violent outbursts or behavioral problems.

Additionally, safety is of paramount concern and employers need not accommodate where there is a significant risk of substantial harm to the employee or others, and where the risk cannot be reduced or eliminated through reasonable accommodations.

When dealing with a mental health disability, employers may obtain reasonable documentation of the disability and need for accommodation, but may not request a diagnosis or more information than is necessary to determine there is a disability and need for accommodation. Employers providing mental health services to clients are cautioned against acting as mental health professionals for their employees.

Overall, employers should follow the same process for accommodating mental health disabilities as they do for physical disabilities. Additional resources are available through the EEOC at www.eeoc.gov.

Preventing Sexual Harassment in the Workplace (Hint: It Starts at the Top)

As recently stated by the Equal Employment Opportunity Commission (EEOC): “harassment in the workplace will not stop on its own – it’s on all of us to be part of the fight to stop workplace harassment. We cannot be complacent bystanders and expect our workplace cultures to change themselves.”

The truth of this statement cannot be overstated.  While it has long been believed that training and an effective complaint process is the way to stop the problem, the EEOC has pointed out that more is likely needed.

“With legal liability long ago established, with reputational harm from harassment well known, with an entire cottage industry of workplace compliance and training adopted and encouraged for 30 years, why does so much harassment persist and take place in so many of our workplaces? And, most important of all, what can be done to prevent it? After 30 years – is there something we’ve been missing?”

It could be said that the missing element is leadership. Too often, yet for good reason, dealing with sexual harassment in the workplace is something that management, executive directors, and chief executive officers often defer to others to handle and manage.

Perhaps the time has come to see the wisdom and efficacy of having the leaders of the mission of the enterprise become more personally involved in the necessary task of eliminating and preventing sexual harassment in the workplace.

Granted, the reality is that many of these individuals are very busy, taxed and overworked. However, a demonstration by senior management and supervisors that they acknowledge, understand, and will take an active role in prevention can only have a positive effect upon the consciousness in the workplace that “zero tolerance” means just that.

In general, there are many ways this leadership can be demonstrated. Here are just a few suggestions:

1. Management Should Take an Active Role in Training

While senior managers are in attendance in training sessions, as some states require, they are often left off the list of presenters. Indeed, the presence of these agency leaders provides a strong and important signal to staff that this subject is important and that management is committed to the elimination of sexual harassment in the workplace. It’s also important to consider an active role in the presentation by the manager, as their level of engagement is likely to have a significant impact on the staff’s engagement.

2. Train Supervisors to Monitor the Workplace for Policy Breaches

Supervisors should be trained to proactively monitor the workplace for any breaches of the organization’s sexual harassment policies. Supervisors and management are uniquely positioned to monitor the interactions of staff with one another and to make inquiries if there is a hint that any form of harassment is occurring, or if one demonstrates the effects of being victimized.

3. Demonstrate Proactive and Effective Support of Enforcement

Given the need to effectively deal with an occurrence of sexual harassment in the workplace, it’s important to remember that the best way to fix a problem is to remove the offender. This often presents management with a conflict of loyalties if the offender is a long-time employee, colleague, or friend. Moreover, it can be the case that the offender is a very productive or important contributor to the overall operation of the agency, including members of senior management. These loyalties or practical concerns must be set aside in making decisions and imposing consequences for violation of sexual harassment policies. No one is too important, indispensable, or essential to an employer’s business to be disciplined for violations of a zero tolerance policy, and managers should demonstrate the courage to handle these situations properly.

4. Monitor and Track Complaints and Investigations

While the complaint and investigation processes are properly delegated to staff with the experience and expertise to handle these critical functions, it’s also vitally important that management know how these actions are handled. Keeping track of the status of complaints and investigations allows management to know the character of their workplace and the agency’s progress in ensuring the workplace is free from harassment.

5. Maintain an Open-Door Policy

Nothing will encourage employees to come forward and report their experiences more than a senior manager who welcomes, supports, and empathizes with them. That support not only enhances morale within the workplace affected by harassment, but also demonstrates an appreciation of the problem and commitment to prevent it from occurring again.

The law has placed no greater importance on any single aspect of employment than the prevention and elimination of sexual harassment. While training and effective complaint and investigation policies have provided methods to achieve this goal, dedicated understanding, support, and encouragement by the leaders of an organization are essential to ensure that mission will succeed.

EEOC Guidance on Mental Health Conditions and Accommodations in the Workplace

Citing a substantial increase in complaints of discrimination and failure to accommodate employees with mental disabilities, the United States Equal Employment Opportunity Commission (EEOC) has released new guidance for employees with these disabilities, advising them of their rights to be free from such discrimination and to request and receive accommodations for their disabilities.

Entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights,” the guidance contains a number of questions and answers to help employees understand their rights under the Americans with Disabilities Act and how the interactive process should work to reach an understanding with the employer about what accommodations can be provided. It also advises what actions on the part of the employer are prohibited, such as firing employees for having a disability, failing to engage in a meaningful interactive process, and forcing employees to take a leave of absence, among others. Furthermore, it contains information regarding the right of employees to have medical information maintained confidentially when obtained through the interactive process.

The EEOC also offers information that may be helpful for employers. For example, the guidance provides a link to a fact sheet entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation.”  Included in this material is a list of how a provider makes available documentation of the disability that the employer may require and what that documentation should include, such as the nature of the employee’s condition, the employee’s functional limitations in absence of treatment, the need for reasonable accommodation, and suggested accommodations.  This clarifies what information the employer is entitled to receive in the documentation process.

The increase in complaints being filed and litigated by the EEOC on behalf of these disabled employees explains why they are taking measures to increase the awareness of employees with mental disabilities of their legal rights in the workplace and their right to accommodation to enable the employee to do their job.  Employers should be strongly advised to review this guidance in detail, not only to avoid the possibility of claims arising from the improper handling of requests for accommodation, but moreover, to ensure that these employees’ rights are protected and not compromised, as the law requires.

The full text of the EEOC’s guidance can be found here.

 

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