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Accommodating Mental Health in the Workplace

April 25, 2018

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.

Employees with Disabilities and the Americans with Disabilities Act

March 2, 2018

Imagine meeting with your employees for their routine annual evaluations and having to tell your once star-performer that their performance is slipping and they are no longer meeting the requirements of the job. You may have a Performance Improvement Plan (PIP) in mind, when the employee discloses that their work product has declined because they are having difficulty doing their job as a result of a medical condition, and you had no idea. Now what?

While some disabilities are obvious, others are not and this is why it is important to always be prepared when an employee discloses a medical condition, physical or mental, that is causing them difficulties at work.

Under the Americans with Disabilities Act (ADA) and as expanded under the Americans with Disabilities Amendments Act (ADAAA), employers with 15 or more employees must ensure equal access to employment for applicants and employees. In other words, the ADA/ADAAA prohibits discrimination based on disability and requires that employers remove barriers to allow qualified individuals equal opportunity to secure and maintain employment without regard to their disability. This federal law requires employers to provide reasonable accommodations to employees that would allow them to perform the essential functions of their job, unless doing so would impose undue hardship on the business or pose a direct threat to the health or safety of the employee or another.

In order to determine whether there are reasonable accommodations available, employers should engage in an interactive process, a collaborative discussion with the employee to determine how the employee can continue to perform essential functions of their position. The following is a list of suggested steps employers should take to ensure a routine and consistent process:

Recognize a request and ask the employee, “How can we help?”
Gather information to determine limitations
Identify essential functions vs. marginal functions by reviewing a current job description
Explore accommodations
Choose accommodations, if any, and notify the employee
Monitor the effectiveness of the accommodation
Maintain status quo or determine new accommodation

The interactive process should be individualized, meaning two employees with the same disability may have different limitations and result in different accommodations. Therefore, it’s important to gather information from a medical provider and have confidential discussions with the employee to learn more about possible accommodations.

While employers may get creative and come up with new ideas that work for both the nonprofit and the employee, other routine examples of accommodations include: allowing a telecommuting arrangement; authorizing additional breaks throughout the day for an employee to check insulin levels; providing leave to an employee for cancer treatment; and permitting an employee to leave work early to attend drug and alcohol rehabilitation sessions.

When working with disabled employees, employers should keep the following in mind:

The Interactive Process may be conducted face-to-face, through a phone conversation, or even by written instrument (e.g., email).
The employer may select accommodations and offer the employee alternatives and is not limited to the requested accommodation of the employee.
If the employee is unable to perform the essential functions of their job with or without reasonable accommodation, the employer may place the employee in a vacant position, so long as the employee is qualified and the employee can perform the essential functions of the vacant position.
Employers do not have to create light duty positions for employees with disabilities. The employee is expected to perform the essential functions of a job and the employer should evaluate accommodations to allow those functions to be performed.
Because the Interactive Process is an ongoing collaborative process, employers should monitor the effectiveness of an accommodation to determine if it should continue or if it is necessary to explore alternatives.

Returning to your star-performer who disclosed a medical condition during a performance discussion, a best practice would be to put the PIP on hold and refer the employee to your nonprofit’s HR Department/representative to commence the ADA interactive process. Ideally, managers will handle performance concerns and HR will handle the confidential accommodation interactive process. Once the interactive process is completed, you should monitor both the effectiveness of the accommodation and the employee’s performance. It is acceptable to record the prior substandard performance in any evaluation, and to track performance during any accommodation period.

As always, nonprofits are encouraged to apply their policies and practices consistently. By following the same general process, employers can lower their risk of a discrimination claim and maintain documentation to demonstrate compliance with federal law. Employers also should be aware that some states have stricter requirements. While the ADA covers employers with 15 or more employees, some states have disability accommodation and anti-discrimination statutes that apply to even smaller workforces.

For more information on the Americans with Disabilities Act and how it can affect smaller nonprofits, also check out this article from the nonprofit knowledge network MissionBox.com.

Background Checks and Ban the Box in California

January 31, 2018

Historically, it has not been uncommon for risk-adverse employers to adopt policies prohibiting the hiring of applicants with a criminal history. Given that one in seven Americans has some sort of criminal history, numerous states and local jurisdictions are passing legislation that makes it more likely employers will consider these applicants. Increased employment opportunities have been shown to reduce the likelihood of recurring offenses for workers with a criminal record, and help these individuals re-integrate into our communities.

Key to these legislative efforts are “Ban the Box” laws, which generally prohibit employers from inquiring about criminal history on the employment application. Nine states and more than 15 cities have adopted Ban the Box laws that apply to private sector employers, with many more jurisdictions applying these laws to government contractors.

California jumped on the ‘Ban the Box’ bandwagon with Assembly Bill 1008, effective January 1, 2018. Modeled after the City of Los Angeles’ Fair Chance Ordinance, this new California law prohibits employers with five or more employees from inquiring about criminal history until a conditional offer has been made. Ban the Box laws don’t prohibit employers from considering criminal history, but rather create a process establishing the timing of when the criminal history can be considered. There are limited exclusions under California’s Ban the Box law, including for positions where an existing law requires criminal background clearance.

Under the California Ban the Box law, an employer must make an individualized assessment of whether an applicant’s criminal history is acceptable or not. It also outlines a process by which the applicant can dispute the accuracy of the criminal history, and provide evidence of rehabilitation or mitigating circumstances for the employer to consider. Employers are required to provide notice of their decision, and grant an opportunity for the applicant to respond, before making the decision final.

While the Ban the Box law is a recent addition in some states, the requirement that employers conduct an individualized assessment of applicants with criminal histories is not. In 2012, the federal Equal Employment Opportunity Commission (EEOC) adopted Enforcement Guidance for employers considering denying employment based on criminal records. These guidelines were founded on studies which demonstrate that criminal record databases are inaccurate or incomplete, and that using criminal history as a basis to deny employment creates the potential for disparate impact of individuals based on factors such as race, which is unlawful under Title VII of the Civil Rights Act.

The EEOC guidance lays out a process for employers to conduct an individualized assessment of whether, based on the job, there is a business necessity to exclude an applicant with a particular criminal conviction, which includes a review of the nature and gravity of the offence, the time that has passed since the conviction or completion of the sentence, and the nature of the job sought.

Many states, including California, have similar regulations or guidance on this issue, including laws that limit an employer’s ability to use certain types of criminal records, such as arrest records, juvenile records, or certain low-level marijuana convictions. Additionally, the Fair Credit Report Act (FCRA) and similar state laws, require employers to obtain written permission to search the criminal records history of employees and applicants, and to follow additional notice procedures if a criminal record is being used to deny employment.

When it comes to criminal background checks and Ban the Box laws, the key take away for employers is to review all laws applicable to their workers’ in the jurisdiction in which they work, and to create checklists and standardized forms to ensure compliance.

Changes to CA Marijuana Laws Leave Employers Unaffected

January 18, 2018

In the 2016 election, California voters passed Proposition 64, which decriminalized the recreational use of marijuana and made California the 8^th state where such use is legal. This change came after decades of recreational use being outlawed, and more than 20 years since the decriminalization of medical use with the enactment of the California Compassionate Use Act of 1996. Proposition 64 also created a wide variety of changes in the institutional and cultural treatment of marijuana in the state, including regulation of cultivation, sale, taxing and use, which went into effect on January 1, 2018.

As was encountered with the decriminalization of medical marijuana 22 years ago, changes to the law have created some uncertainty as to how the law affects employer’s ability to control the use of marijuana by employees under Drug-Free Workplace policies. The resolution of any uncertainty begins with the simple reality that, despite the new direction California and several other states have taken, the sale and use of marijuana remains federally illegal. The continued illegality of marijuana under federal law created the necessity for the California Supreme Court to clarify the effect of the medical marijuana law on an employers’ ability to regulate its use and impact in the workplace.

In the 2008 case Ross v. RagingWire Telecommunications, Inc., the Court upheld the termination of an employee who tested positive for marijuana despite their having a valid prescription. The Court noted that the Act only removes criminal penalties for authorized medical use and nothing more. Marijuana use remained illegal under federal law and thus, the use of medical marijuana was not considered the same thing as the use of other “legal” prescriptions. In the 2012 case James v. City of Costa Mesa, the court ruled similarly, finding that because federal law does not authorize marijuana use, users may not seek protection under the Americans with Disabilities Act (ADA) either.

The newer law relating to recreational use does not deviate significantly from these rulings. Proposition 64 specifically states that it does not amend, repeal, affect, restrict, or preempt “the rights and obligations of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of marijuana in the workplace, or affect the ability of employers to have policies prohibiting the use of marijuana by employees and prospective employees, or prevent employers from complying with state or federal law.”

What does that mean for California employers and employees? Nothing in Proposition 64 limits the ability of an employer to enforce its marijuana-related policies, including testing current and prospective employees, and/or discipline (including termination) under those policies.

In the midst of the well-publicized changes to California law early this year, another potentially significant event occurred without significant coverage and whose impact has yet to be fully realized or understood. In 2013, then U.S. Deputy Attorney General James Cole sent a memo to federal prosecutors, advising that their efforts should not be devoted to the use or sale of marijuana in states where it had been legalized. It further advised that prosecutors should leave any enforcement efforts to state and local authorities.

On January 4, 2018, three days after the commercial sale of marijuana became legal in California, Attorney General Jeff Sessions rescinded this policy and directed federal prosecutors to enforce federal law regarding marijuana, and to “follow well-established principles when pursuing prosecutions related to marijuana activities”.

While the effect of the new federal enforcement direction remains to be seen, one thing remains clear— the right of employers to maintain and enforce their policies concerning marijuana use remains intact.

The Nonprofit Student-Debt Conundrum

January 10, 2018

This article was originally published on BlueAvocado.org as part of a special edition done in conjunction with Young Nonprofit Professionals Network (YNPN).

At first glance, nonprofits and millennials seem like a match made in heaven. Despite often being judged by our peers, our so-called “entitled” generation puts our desire for positive change above almost all else, seeking jobs that allow us to both do good and feel good.

According to a survey conducted by Deloitte, 60 percent of millennials look for purpose in their work, and 77 percent reported that their company’s purpose was a major factor in why they chose to work there. With that in mind, it would seem that the nonprofit sector and millennials are indeed a perfect pair, and in this situation, nonprofits get innovative young professionals with a passion to make a difference, and millennials get the opportunity to use their skills to benefit the greater good. It’s a win-win situation – or so it would seem.

Purpose vs. Paycheck

While it’s true that most millennials have the desire to work for a cause rather than just a paycheck, there’s one major factor that complicates this seemingly ideal relationship: the student loan crisis. With student debt in the United States equaling more than $1.45 trillion and college graduates on average owing $37,000 in educational loans, it’s nearly impossible for millennials to choose a career without factoring in their educational debt, and unfortunately, when factoring in such debt, the nonprofit sector begins to look less appealing.

The student debt crisis, combined with the public perception that nonprofits have less-than-desirable salaries, function as a deterrent to millennials because in many ways, we believe we can have a more significant impact on our debt and our community if we choose to work for a for-profit company and find alternative ways to get involved. The fact is, a large salary at a for-profit company can be more appealing than a stereotypically low nonprofit salary, even to those of us that have a desire to work for the greater good, because it gives us the ability to make student loan payments with ease and make substantial donations to the nonprofits that we care about, all with the financial stability that we seek. This isn’t to say that millennials are motivated solely by money, but with student debt lingering over the heads of so many, it has an effect on the nonprofit sector’s ability to attract and retain millennial talent.

Why does this matter for nonprofit leaders?

Millennials are already the largest working generation in the U.S., which makes us increasingly important to nonprofit and for-profit employers alike, and with student debt as a factor, many choose to abandon nonprofit work despite their desire to do good. The problem does not just extend along the lines of age either; student debt also affects diversity.

According to a study conducted by CalNonprofits, “student debt results in a less diverse workforce; many of the nonprofit employees leaving the sector are those with larger student debt – first generation college graduates, people of color, and women.” Women hold nearly 65 percent of student debt, and pay back their loans at a slower rate than men, likely a result of the gender pay gap. Minorities face similar issues, with black and Hispanic borrowers paying their loans back more slowly than white and Asian borrowers, often due to financial difficulties after graduation.

To make matters worse, minorities are already underrepresented in the nonprofit sector. In the U.S., only 20 percent of nonprofit board members are people of color, and while 73 percent of nonprofit employees are women, more than half of nonprofit leaders are men.

This presents an issue to nonprofits, as diversity is directly linked to creativity, innovation, and better overall performance. As the Stanford Social Innovation Review puts it, “If we want to optimize the social sector’s potential to create impact, diverse nonprofit boards are not a “nice to have,” they are a “must have.” If student debt disproportionally affects the very individuals that the nonprofit sector needs in order to better itself, and individuals with student debt become disinclined to work in the nonprofit sector, that presents a very real problem for nonprofit leaders.

How can nonprofits attract more young professionals?

Given how essential millennials are becoming to employers, and how perfect a match nonprofits and millennials can be, what can nonprofit leaders do to attract and retain more young professionals with debt? Below are some options for supporting staff:

This many seem like a given, but pay close attention to the salaries and benefits being offered by your organization. When it comes to determining employee salaries, use benchmark data to ensure that you’re offering compensation that is on par with similar organizations, to the best of your organization’s ability. According to an article on EBN, many regional nonprofit associations collect this information to “help nonprofits ensure they’re offering a competitive salary for their job role and region.”
Read up on the Public Service Loan Forgiveness Program. Stay informed about Public Service Loan Forgiveness eligibility requirements and find out if your nonprofit is a qualified employer. If so, make sure employees are aware of the requirements, as well as any updates to the program. Employees that do qualify are eligible for student loan forgiveness after 10 years of nonprofit employment – a major source of appeal for young employees with debt.
Create a tuition reimbursement program for education related to the employee’s job function. This can help retain employees wishing to continue their education without increasing their debt.
Pay attention to other factors of employment that attract young professionals, such as work-life balance. Factor in “soft benefits” such as company lunches, generous time off, and other factors that contribute to an employee’s overall wellness and satisfaction.
Prioritize volunteer work so that your employees maintain a close connection to the cause. Facilitating and maintaining a hands-on relationship between your employees and your mission helps keep younger staff-members directly invested in the good of the work they’re doing.

It’s undeniable that nonprofits are a great fit for millennials, who have an innate desire to work towards a cause and to have an impact on their community. While student debt can muddy this seemingly perfect relationship, making it a somewhat less desirable choice for some young professionals, the fact is that given the right circumstances, the two can still be a match made in heaven.