[co-authors: Reggie Belcher, Hannah Stetson]*

Employers are more commonly facing issues regarding the accommodation of mental health issues in the workplace; issues that impact the company’s legal obligations under employment law while trying to get past the stigma that is all too often associated with these requests. These issues can turn a simple workplace conversation into a complex battle with the Equal Employment Opportunity Commission (“EEOC”). This article should help employers analyze those issues and provide practical advice for what to do when the request for accommodation comes in.

The Americans with Disabilities Act (“ADA”) prohibits covered employers from discriminating against disabled individuals in the full range of employment-related activities, including recruitment, advancement, pay, benefits, discipline, and discharge. Under the ADA, the term “disability” means: “(a) A physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment.” 42 U.S.C. § 12102(2) (1994); 29 C.F.R. § 1630.2(g) (emphasis added).

A mental impairment means—

(2) Any mental or psychological disorder, such as an intellectual disability (formerly termed “mental retardation”), organic brain syndrome, emotional or mental illness, and specific learning disabilities.

29 C.F.R. § 1630.2(h)(2) (emphasis added).

“[T]he definition of ‘disability’ . . . shall be construed broadly in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. The primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. The question of whether an individual meets the definition of disability under this part should not demand extensive analysis.” 29 C.F.R. § 1630.1.

Mental Health Impacts the Workplace

A mental health condition can impact various aspects of an individual’s life, including the ability to achieve maximum productivity in the workplace. According to the Centers for Disease Control and Prevention (“CDC”):

• Nearly one in five U.S. adults suffer from one or more mental illnesses (18.3% of the population / 44 million people);
• 71% of adults regularly report at least one symptom of stress, such as a headache, feeling overwhelmed, or anxious; and
• Many adults with mental health disorders also need care for other physical health conditions, including heart disease, diabetes, respiratory illness, and other disorders affecting muscles, bones, and joints. The costs of treatment for individuals suffering both a mental and physical health condition are two to three times higher than for those without co-occurring illnesses.

(Workplace Health Promotion, Centers for Disease Control and Prevention, https://www.cdc.gov/workplacehealthpromotion/index.html).

Mental illnesses such as depression “are associated with higher rates of disability and unemployment.” Id. Depression interferes with a person’s ability to complete physical job tasks about 20% of the time and reduces cognitive performance about 35% of the time. Id. The CDC estimates that only 57% of employees who report moderate depression and 40% of those who report severe depression receive treatment to control symptoms. Id.

Even after taking other health risks—like smoking and obesity—into account, employees at high risk of depression had the highest health care costs during the three years after an initial health risk assessment. Id. Depression is estimated to cause 200 million lost workdays each year at a cost to employers of $17 to $44 billion. Id. According to the World Health Organization (“WHO”), during the first year of the COVID-19 pandemic, global prevalence of anxiety and depression increased by 25%. (COVID-19 Pandemic Triggers 25% Increase in Prevalence of Anxiety and Depression Worldwide, WHO, https://www.who.int/news/item/02-03-2022-covid-19-pandemic-triggers-25-increase-in-prevalence-of-anxiety-and-depression-worldwide).

The scope of mental health’s impact on the workplace cannot be understated, affecting both profitability and productivity in the workplace. According to the National Alliance of Mental Health (“NAMI”), mental health conditions cost employers more than $100 billion and 217 million lost workdays each year. (Why Employers Need to Talk About Mental Illness in the Workplace, NAMI, https://namipierce.org/why-employers-need-to-talk-about-mental-illness-in-the-workplace/).

Stigma Involving Mental Health

While the scope and effect of mental health’s impact in the workplace is undeniable, mental health disabilities can be particularly challenging for employers and employees. One reason for this challenge is the stigma associated with mental illness. This stigma is “rooted in negative stereotypes of persons with mental disorders as dangerous, incompetent, unpredictable, hopelessly ill, and yet somehow responsible for their illness.” (Marjorie L. Baldwin, Ph.D., Allan C. DeSerpa, Ph.D., and Steven C. Marcus, Ph.D., Workplace Disclosure of Serious Mental Illness and Gainful Employment: Theory and Evidence, The Journal of Mental Health Policy and Economics, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC10174120/#R10). The stigma often leads to an employee being faced with a difficult decision as to whether to disclose a mental impairment to an employer. While concealing a mental impairment may maintain employee’s “privacy, protects them from disability-related discrimination, and ensures that they will be treated like other workers . . . concealment can also be psychologically stressful and economically detrimental” to employees, and employers, by extension. Id.

The EEOC also believes this stigma is a concern in the workplace, concluding that “individuals with psychiatric disabilities face employment discrimination because their disabilities are stigmatized or misunderstood . . . [based on] myths, fears, and stereotypes.” EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No. 915.002 (March 25, 1997) (“EEOC Guidance”).

Typical ADA Issues Involving Mental Health

By addressing mental health issues in the workplace, including being proactive about identifying these issues, employers can increase productivity and employee retention, as well as compliance with governing state and federal law addressing the same. While the ADA requires an individualized analysis for any employee claiming protection or requesting an accommodation under the ADA, the EEOC’s Guidance addresses, among other topics, issues that employers frequently face in dealing with mental health issues in the workplace. (Id.) The following provides a few key highlights from this EEOC guidance, to equip employers with a deeper understanding of how to handle ADA mental health issues in the workplace.

• Determining whether a mental health impairment substantially limits performance of a major life activity (and thus may constitute a “disability”) must be made without regard to mitigating measures, including medications prescribed to control the impairment. EEOC Guidance, Q6.
• Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurrence in substantially limiting forms. For some individuals, psychiatric impairments such as bipolar disorder, major depression, and schizophrenia may remit and intensify, sometimes repeatedly, over the course of several months or several years. EEOC Guidance, Q8.
• An impairment substantially limits an individual’s ability to interact with others if, due to the impairment, s/he is significantly restricted as compared to the average person in the general population. Some unfriendliness with coworkers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. An individual would be substantially limited, however, if his/her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary. EEOC Guidance, Q9.
• An impairment substantially limits an individual’s ability to concentrate if, due to the impairment, s/he is significantly restricted as compared to the average person in the general population. For example, an individual would be substantially limited if s/he was easily and frequently distracted, meaning that his/her attention was frequently drawn to irrelevant sights or sounds or to intrusive thoughts; or if s/he frequently experienced his/her ‘mind going blank.” EEOC Guidance, Q10.
• Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his/her employer. Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files. EEOC Guidance, Q15.
• Employers are not responsible for monitoring whether employees take their medication because doing so does not remove a barrier that is unique to the workplace. EEOC Guidance, Q28.
• Employers may discipline a disabled individual for violating a workplace conduct standard even if the misconduct resulted from a disability—provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity. For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. EEOC Guidance, Q30.
• However, though the ADA does not require an employer to excuse past misconduct, employers must reasonably accommodate a disabled individual to enable him/her otherwise to meet such a conduct standard in the future, barring undue hardship, because reasonable accommodation is always prospective. For example, a reference librarian frequently loses her temper at work, disrupting the library atmosphere by shouting at patrons and coworkers. After receiving a disciplinary suspension, she discloses her disability, states that it causes her behavior, and requests a leave of absence for treatment. The employer may discipline her because she violated a conduct standard – a rule prohibiting disruptive behavior towards patrons and coworkers – that is job-related for the position in question and consistent with business necessity. The employer, however, must grant her request for a leave of absence as a reasonable accommodation, barring undue hardship, to enable her to meet this conduct standard in the future. EEOC Guidance, Q31.
• If a disabled individual engages in misconduct because s/he is not taking his/her medication, the employer should focus on the employee's conduct and explain to the employee the consequences of continued misconduct in terms of uniform disciplinary procedures. It is the employee's responsibility to decide about medication and to consider the consequences of not taking medication. EEOC Guidance, Q32.
• An individual does not pose a direct threat solely because s/he takes a medication that may diminish coordination or concentration for some people as a side effect. Whether such an individual poses a direct threat must be determined on a case-by-case basis, based on a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. Therefore, an employer must determine the nature and severity of the individual’s side effects, how those side effects influence his/her ability to safely operate the machinery, and whether s/he has had safety problems in the past when operating the same or similar machinery while taking the medication. If a significant risk of substantial harm exists, then an employer must determine if there is a reasonable accommodation that will reduce or eliminate the risk. EEOC Guidance, Q33.
• An employer may refuse to hire someone based on his/her history of violence or threats of violence if it can show that the individual poses a direct threat. A determination of a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the functions of the job, considering the most current medical knowledge and/or the best available objective evidence. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat. This includes an assessment of the likelihood and imminence of future violence. EEOC Guidance, Q34.
• An individual who has attempted suicide does not necessarily pose a direct threat when s/he seeks to return to work. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person’s ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee. EEOC Guidance, Q35.

Reasonable Accommodations For Psychiatric Disabilities

Under the ADA and other nondiscrimination laws, employers must provide “reasonable accommodations” to qualified employees with disabilities.

Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities to perform the essential functions of their jobs. Accommodations vary, just as people’s strengths, work environments, and job duties also vary.

Reasonable accommodations for individuals with psychiatric disabilities may include (but are not limited to):

Flexible Workplaces

• Telecommuting and/or working from home.
• Part-time work hours, job sharing, adjustments in the start or end of work hours, compensation time and/or “make up” of missed time.

Leave

• Sick leave for reasons related to mental health, flexible use of vacation time, additional unpaid or administrative leave for treatment or recovery, leaves of absence and/or use of occasional leave (a few hours at a time) for therapy and other related appointments.

Breaks

• Breaks according to individual needs rather than a fixed schedule, more frequent breaks and/or greater flexibility in scheduling breaks, provision of backup coverage during breaks, and telephone breaks during work hours to call professionals and others needed for support.

Workplace Modifications

• Reduction and/or removal of distractions in the work area.
• Addition of room dividers, partitions, or other soundproofing or visual barriers between workspaces to reduce noise or visual distractions.
• Private offices or private space enclosures.
• Office/work space location away from noisy machinery.
• Reduction of workplace noise that can be adjusted (such as telephone volume).
• Increased natural lighting or full-spectrum lighting.
• Music (with headset) to block out distractions.

Equipment/Technology

• Audio/video recorders for recording/reviewing meetings and training sessions.
• “White noise” or environmental sound machines.
• Handheld electronic organizers, software calendars, and organizer programs.
• Remote job coaching, laptop computers, personal digital assistants and office computer access via remote locations.
• Software that minimizes computerized distractions such as pop-up screens.

Job Duties

• Modification or removal of non-essential job duties or restructuring of the job to include only the essential job functions.
• Division of large assignments into smaller tasks and goals.
• Additional assistance and/or time for orientation activities, training and learning job tasks and new responsibilities.
• Additional training or modified training materials.

Management/Supervision

• Implementation of flexible and supportive supervision style; positive reinforcement and feedback; adjustments in level of supervision or structure, such as more frequent meetings to help prioritize tasks; and open communication with supervisors regarding performance and work expectations.
• Additional forms of communication and/or written and visual tools, including communication of assignments and instructions in the employee’s preferred learning style (written, verbal, e-mail, demonstration); creation and implementation of written tools such as daily “to-do” lists, step-by-step checklists, written (in addition to verbal) instructions and typed minutes of meetings.
• Regularly scheduled meetings (weekly or monthly) with employees to discuss workplace issues and productivity, including annual discussions as part of performance appraisals to assess abilities and discuss promotional opportunities.
• Development of strategies to deal with problems before they arise.
• Written work agreements that include any agreed upon accommodations, long-term and short-term goals, expectations of responsibilities and consequences if not meeting performance standards.
• Education of all employees about their right to accommodations.
• Relevant training for all employees, including coworkers and supervisory staff.

(Accommodations for Employees with Mental Health Conditions, U.S. Dept. of Labor, Office of Disability Employment Policy, https://www.dol.gov/agencies/odep/program-areas/mental-health/maximizing-productivity-accommodations-for-employees-with-psychiatric-disabilities).

A recent jury trial in the United States District Court for the District of Massachusetts highlighted the risk an employer faces when presented with a request for a mental health accommodation. In Menninger v. PPD Development, L.P., the plaintiff, Dr. Lisa Menninger, was an executive at a global laboratory services company. At some point, her employer told her that her job duties would shift to require a more interactive and visible role. The prospect of this change prompted Dr. Menninger to disclose, for the first time to her employer, that she suffered from “generalized anxiety disorder that includes social anxiety disorder and panic attacks.” Menninger v. PPD Dev., L.P., 2022 U.S. Dist. LEXIS 138967, at *4-5 (D. Mass. Mar. 22, 2022). Dr. Menninger submitted an accommodation form along with a form from her psychiatrist, who noted that changes to Dr. Menninger’s role would increase her anxiety and make it “substantially more difficult, if not impossible, for [Plaintiff] to perform her job” and submitted five specific requests for accommodations regarding the same. Id.

The employer agreed to two accommodations but denied three requested accommodations, on the basis that the requested accommodations involved essential job functions. Id. at *8-10. The employer ultimately terminated Dr. Menninger’s employment following an eight (8) month medical leave, after the denial of three accommodation requests. Id. at *10.

After an 11-day trial, a jury ultimately found that the employer violated the ADA (as well as corresponding Massachusetts state law), awarding a $24 million total verdict to Dr. Menninger—$1.565 million in back pay, $5.465 million in front pay, $5 million for past emotional distress, $2 million for future emotional distress, and $10 million in punitive damages.

Service Animals As Reasonable Accommodations

Another area where employees are increasingly requesting an accommodation is via the use or presence of a service animal. Title I of the ADA (applying to workplaces) does not automatically require employers to allow the use or presence of service or emotional support animals, whether a dog, miniature horse, or other animal, to assist disabled individuals in the workplace. In fact, Title I does not define, mention, or refer to service or emotional support animals at all, though employers may allow their use or presence, as a reasonable accommodation depending on the specific circumstances.

In other words, the same reasonable accommodation standards and analysis apply with regard to service or emotional support animals as for all other types of accommodations in the workplace. For example, as with any request for an accommodation, the employer may need more extensive medical information regarding the employee’s disability, explaining specifically how the service animal’s presence will relate to his or her ability to perform the duties of the job, in order to evaluate the request.

In addition, if employers permit the use of service or emotional support animals in the workplace as a reasonable accommodation, employers have discretion to require that the disabled employee leash, crate, or otherwise control the animal at all times and that the employee maintain sanitary conditions and take care of the animal’s needs.

Final Thoughts

Mental health impacts the workplace, and employers must be educated, prepared, and ready to address these issues. On the front end, employers need to think broadly as to when the ADA is triggered in the context of mental health issues. Employers should also be purposeful and diligent in engaging in the interactive process, even for requests for accommodations that may seem unreasonable or untenable.

* Reggie Belcher is a shareholder with Turner Padget in Columbia, South Carolina, and he is a longtime DRI member and a Certified Specialist in Labor and Employment Law.

Hannah Stetson is a Shareholder with Turner Padget, where she practices on the firm’s labor and employment team.