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<h5>Key Takeaways:</h5>
<ul>
 	<li>As society’s understanding of mental health conditions continues to evolve and individual diagnoses of mental health conditions are on the rise, employees’ EEOC disability discrimination charges related to mental health conditions are quickly increasing.</li>
 	<li>Supervisors and managers should be trained to ensure their decision-making is not based on outdated biases against and misunderstandings about mental health conditions and, relatedly, how to identify and respond to requests for accommodations.</li>
 	<li>Under the ADA, employers’ duties to engage in the interactive process and provide reasonable accommodations are the same for disabilities arising from physical and mental health conditions.</li>
</ul>
Before we shift our focus away from Mental Health Awareness Month, we want to offer some guidance to employers seeking not only to avoid liability under the Americans with Disabilities Act (ADA) but also to create a more inclusive environment for employees with mental health conditions.

It is estimated that 18.5 percent of Americans, nearly 1 in 5, have reported a mental health condition within the past year. The Equal Employment Opportunity Commission (EEOC) has publicized statistics showing claims based on anxiety disorders alone nearly doubled between 2013 and 2021. In fact, accusations of unlawful discrimination based on an employee’s mental health condition accounted for about 30 percent of all ADA-related EEOC charges filed in 2021. Without a doubt, ensuring a workplace free from discrimination against—and simultaneously remaining inclusive of—employees with mental health conditions demands employer attention.

Mental health conditions remain misunderstood by many. As medical science evolves, our society continues to learn more about the prevalence of mental health conditions, their physiological sources, and how these conditions may influence an employee’s experience in the workplace. Medical science’s understanding of mental health conditions is, however, generally outpacing managers’ and supervisors’ understanding of these conditions.

For one month, listen carefully to the informal conversations in your workplace. How many times does someone refer to a coworker’s conduct as “crazy”? How often does someone characterize what they perceive to be another’s erratic decision-making as “bipolar”? Although standing alone, neither of these comments would substantiate a claim for disability discrimination under the ADA, each could be viewed as one piece of the disability discrimination puzzle. For example, remarks like these can take on greater significance when combined with a manager’s failure to understand their obligations under the ADA.

As a refresher, the ADA’s definition of “disability” remains the same, regardless of whether the disability is related to a physical or a mental impairment. The ADA defines “disability” as including impairments that substantially limit one or more major life activities. When a qualified individual, including both job applicants and employees – though for brevity, we will focus on employees here – has a mental health condition that substantially limits one or more major life activities, the ADA guarantees them the right to privacy and, if they so choose, the right to request an accommodation.

Of course, there is no requirement that an employee use magic words, such as “disability” or “reasonable accommodation.” Additionally, someone other than the employee, such as a family member, friend, health professional or other representative, may request the accommodation on their behalf. The request need not be in writing, may be made orally and need not state a specific diagnosis.

The request must, however, include enough information to make clear the employee would benefit from an adjustment, change or other assistance at work and the need is related to a medical condition. For example, an employee’s simply sharing they have a bipolar diagnosis – without asking for an accommodation to help them perform their job duties or identifying how the condition is affecting their ability to perform their job – is not sufficient to jump-start the interactive process. In this instance, the employer must instead remain focused on ensuring that decision-makers are not basing employment decisions on stereotypes or other subjective beliefs.

On the other hand, if it appears an employee may need an accommodation, the employer must engage in the interactive process to identify the precise limitations caused by the disability, identify potential accommodations, and determine which, if any, might effectively allow the employee to perform the essential functions of their job. This discussion is best handled by those who are experienced in the process, often with the guidance of counsel, and it should be well documented.

The interactive process highlights the importance of ensuring all job descriptions are current and accurately identify the essential job functions with an eye toward not just physical tasks (crawling, typing, sitting, standing) but also mental tasks (prioritizing tasks effectively, managing multiple deadlines at once, switching between tasks throughout the day). Post-COVID, it is also critical to include whether a position’s essential job functions may be completed remotely.

When evaluating the employee’s request, the employer must determine its duty to accommodate under the same framework applied to those with physical disabilities. After all, employers do not need to provide an accommodation that is unreasonable or would create an undue burden for the employer. Management may consider the nature and the cost of the requested accommodation relative to the employer’s size and budget, the impact the accommodation may have on the workplace and other employees, and its obligations under any applicable collective bargaining agreements.

Examples of potential accommodations may include those designed to assist with concentration or distraction, such as more frequent or different reminders of tasks and due dates, a quieter workspace, the use of a white noise machine or earphones, more frequent breaks, or remote work. Employers may also accommodate employees by providing a flexible schedule to allow for treatment appointments and management of medication, medication side effects, and regular symptoms associated with the employee’s specific health condition. Reasonable accommodations may also include paid or unpaid leave, reassignment to a different role or work group or reassignment of non-essential job duties. In short, the interactive process is based on the individual facts and circumstances of each situation.

To assist with determining whether an accommodation is necessary and whether the accommodation an employee is requesting is reasonable, employers may ask for a certification from a healthcare provider. The employer may provide a job description or a list of job duties, the employee’s work schedule, the accommodation being requested by the employee and alternatives the employer believes are reasonable. The healthcare provider can answer questions about how the employee’s ability to perform their job duties is limited, whether the limitations are temporary or permanent, and, whether there are other accommodations that might assist the employee with performing the essential functions of their job. The EEOC’s guidance suggests “minor” accommodation requests be provided without seeking this additional documentation.

Keep in mind that the interactive process requires an incredibly fact-specific analysis. This is true regardless of whether an employee’s medical condition creates a mental or a physical impairment. Compliance requires employers to ensure that they’ve set aside any vestiges of outdated stereotypes, managers and supervisors have been trained to identify a request for an accommodation, and decisions are based on the facts after careful analysis.

For employers who want to ensure an inclusive environment for employees with mental health conditions while protecting against liability, additional training about the ways bias against mental health conditions can present in the workplace would be valuable.

For further guidance, please contact the Labor and Employment Practice Group at BakerHostetler and refer to other guidance, including the Client Alert titled “<a href="https://www.bakerlaw.com/alerts/neurodivergence-in-workplace-associated-employment-related-considerations">Neurodivergence in the Workplace and Associated Employment-Related Considerations</a>.”

Keeping Mental Health Top of Mind Beyond May While Ensuring ADA Compliance

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