Gould & Ratner LLP

Employees must feel well to do their jobs well. Since March, one of my amazing partners has reminded me: “On the plane, they tell you to put your mask on first before assisting others.” The same premise can be applied on the ground. In this week’s post, we will explore mental health trends, ADA law, and how reasonable accommodations may look radically different in a remote workplace. We will also give practical tips on how to better train managers and Human Resources to navigate accommodation requests with compassion and empathy.

Anxiety and Depression on the Rise

Four months have passed since your employees went home and stayed there. Since that time, the virus has spread, unemployment has soared, George Floyd was killed, and the economy has taken a dive like never seen in our (recorded) history. It should be no surprise that newly remote employees are worried about far more than how to stay focused when the television is right there. Today, remote employees are worried about their health, their family’s health, their job, and their community. They are worried for their lives and their children’s lives. They are worried about their Black friends and family. They are worried about the election. They are worried about how worried they feel all of the time. Sleeplessness, isolation, uncertainty, and a barrage of negative stories in the media contribute to an increase risk for suicide.[1]

Some employees may be more impacted than others. Employees who have undiagnosed mental health conditions. Employees who have managed mental health conditions their entire lives. Employees who live alone may feel especially isolated without the daily check-ins around the company’s coffee machine. Employees who are deemed at-risk for COVID-19 due to age or underlying conditions may be more like to suffer anxiety, hypochondriasis and agoraphobia. According to a report by McKinsey & Company, compared with White Americans, Black Americans are more likely to have concerns over job security during the pandemic.

The ADA and Mental Health

Last week, the American with Disabilities Act turned 30 years old. The Act, which covers employers with fifteen or more employees, prohibits discrimination on the basis of a disability. (So, too, do state and local laws, many of which apply to employers with just one employee). The term “disability” means, with respect to an individual:

  • a physical or mental impairment that substantially limits one or more major life activities of such individual;
  • a record of such an impairment; or
  • being regarded as having such an impairment.

The term “mental impairment” is broader than you may realize. EEOC uses as examples of mental impairment “emotional or mental illness[es]” “major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.” 

As we anticipate mental health issues worsening, or perhaps springing from, this unprecedented era, employers must be careful to avoid claims of discrimination in their communication with and treatment of affected employees. Smaller employers are not necessarily exempt from claims: in a growing number of jurisdictions, including California, New York, and Illinois, state and city human rights statutes protect all employees from discrimination.

Navigating Mental Health Issues Remotely

Back in April, the EEOC published a series of FAQs about the ADA in the midst of COVID-19. Among other things, the EEOC stated that reasonable accommodations at home may be different than those needed at work, and that COVID-19 may result in “additional or altered” accommodations.

What can you do now to ensure a safe, healthy remote workforce?

Look for Signs

Train your staff to look for signs and symptoms of mental health struggles. Do not use the remote work environment as a way to invoke plausible deniability. For one thing, your employees are people. Caring about their mental health is not only good for your business, but also good for the world. Employees who suddenly disappear, fail to participate on virtual calls, or become angry or hostile in communications, might be in need of some help. Another point? Morale. People care to work for you when they feel you care about them. Reach out to your people.

Proactively Provide Access to Resources and Explanations of Benefits

Do you have an Employee Assistance Program? Ensure that your Human Resources group remind employees of the benefit, which provides confidential counseling to employees (often for no charge to the employee). Do you have a telehealth benefit covering mental health? Provide your employees with updated information. Additionally, California, Hawaii, New Jersey, New York, and Rhode Island require employers to have short-term disability insurance for injuries, treatment, or continuing supervision. Depending on your policy, employees with mental health issues may qualify.

Engage in the Interactive Process

Just like pre-pandemic times, your Company must engage in the “interactive process” when faced with a request for an accommodation. As part of that process, “the employer may offer alternative suggestions for reasonable accommodations and discuss their effectiveness in removing the workplace barrier that is impeding the individual with a disability.”[1] While jurisdictions such as the Seventh Circuit has held that a medical leave with no planned end date may not be reasonable, an extended leave, perhaps tied to an event such as a vaccine, may be reasonable. Similarly, intermittent leave (where an employee takes periodic leaves of absence to receive care for and/or recover from a covered disability) may be reasonable.

Additionally, an employee who is suffering may not have the ability to ask for help – whether due to incapacity, anxiety, stigma, or fear of retaliation. The Seventh Circuit held in Bultemeyer v. Fort Wayne Community Schools that where the employee has mental disabilities, the communication process becomes more difficult and the employer must meet the employee halfway. Therefore, if the employee may need an accommodation but does not know how to ask for one, the employer should do what it can to help.

Avoid Unintentional Discrimination

The interactive process is flexible and requires that the employer in good faith work to accommodate the employee. You and your staff must assess each employee as an individual human being with unique issues. Additionally, you will need to assess your business needs.

Avoid comments such as, “It’s 2020 … we’re all going to have to just roll with it.” Not everyone can roll with things. Do you have an employee who started taking medication that makes her groggy in the morning? Perhaps the remote environment lends itself to her logging in at 10 am, rather than 8:30 am. Do you have an employee suffering from OCD? Perhaps he is unable to adjust to your new staggered work schedule that changes as much as the laundry. You can accommodate that particular employee by simply giving him back a routine.

As I will continue to say until I am blue in the face: communication is key – especially when we are apart. In 2020, your leadership must lead with empathy. It all starts with an open mind and a flexible culture.

If you are somebody you know is having suicidal thoughts, call the National Suicide Prevention Lifeline (Lifeline) at 1-800-273-TALK (8255), or text the Crisis Text Line (text HELLO to 741741). Both services are free and available 24 hours a day, seven days a week.


[1] Leo Sher, The impact of the COVID-19 pandemic on suicide rates, QJM: An International Journal of Medicine, , hcaa202, https://doi.org/10.1093/qjmed/hcaa202

[2] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

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