Management

Mental Health and Your Workforce

Companies need to prepare for mental health modifications at work

The facts are startling: one in five American adults experiences mental illness in their lifetime. That ratio easily translates into a business environment where it is common to have employees who are living with mental illness. A topic that once was downplayed by employers is now very front and center in the workplace: Mental illness is a fact of life in modern American culture, and it cannot be ignored. A 2020 study by the National Institutes of Mental Health found that about 18% of the American adult population lives with an anxiety disorder, and nearly 7% suffer from clinical depression. And the numbers are even more concerning in younger adults. A recent study by Boston University found that 60% of adults between ages 18-29 reported experiencing anxiety and 61% experienced depression. Those numbers are six times higher than studies conducted before the pandemic, clearly showcasing the magnitude of its cultural impact. Adding to high percentages, several studies have found that one in four Americans over age 18 are taking prescribed mental health medications— which translates to an estimated 50 million adults under the care of a physician for a mental health condition.

Reasonable Accommodation

Mental health illnesses range from anxiety and depression to panic disorders and obsessive-compulsive conditions to more serious posttraumatic stress disorder (PTSD), bipolar disorder, schizophrenia and personality disorders. While most Americans are not experienced in recognizing or talking about mental health issues, employers are expected to be prepared to welcome and accommodate workers who have mental health disorders. Mental illness is a disability addressed in the Americans with Disabilities Act. Adopted in 1990, the federal statute prohibits employers from unreasonably discriminating against people with disabilities. As the ADA website says, the law “guarantees that people with disabilities have the same opportunities as everyone else to participate in the mainstream of life.” And one of those mainstream opportunities is the right to be employed. At what point does anxiety and/or depression become a disability? By law, a person has a mental disability if their impairment substantially limits one or more major life activities, like the ability to work. Under the ADA, an individual’s disabilities are not to be considered by an employer in decisions regarding hiring, maintaining, disciplining, promoting or firing a worker. If an individual has the requisite skill, experience, education and other jobrelated requirements, and can perform the essential functions of the job, the employer is expected to consider a reasonable accommodation. A job applicant is not required to disclose a mental illness unless the condition would prevent them from performing job tasks expected by the employer. Likewise, an employee who develops a mental health condition while on the job, is not obligated to report the diagnosis to their employer. The employer is permitted to ask whether the employee is able to complete job tasks but is prohibited from asking about mental health disorders. Often, the employer only becomes aware of the condition when the individual requests an accommodation, as permitted by the ADA. Accommodating an employee’s mental health condition can be perplexing for an employer. When a worker asks for accommodation for a physical condition, such as a broken leg, most managers can easily identify ways to facilitate continued productivity. But when an employee says they are suffering from depression, most managers are at a loss for how to accommodate the condition. The federal ADA law requires employers with 15 or more employees to offer accommodations to employees who present a request and can substantiate a disability. Large corporations long ago developed protocols to address and accommodate mental health disorders. Most have human resource specialists experienced in handling accommodation requests, and some even have in-house legal counsel oversee complying with the ADA. But for smaller employers, there is a substantial need for training and establishment of policies and practices to avoid missteps under the ADA.

Support Animal

The Job Accommodation Network (JAN) is an organization that offers practical guidance on ADA compliance to employers of all sizes and types. Among its expertise, JAN helps employers consider the feasibility and effectiveness for workplace accommodations alternatives. Funded by the U.S. Department of Labor, JAN provides free guidance and technical assistance to employers seeking feasible job accommodation solutions, along with a free toolkit, targeted to help employers develop policies to promote an inclusive environment for all individuals. Companies are expected to take steps to reasonably accommodate persons with disabilities so the employees can perform the essential job functions. Because people experience mental health issues in a variety of ways, the accommodations are evaluated on an individual basis. The U.S. Office of Disability Employments provides a few examples of accommodations for mental health disorders: • Allowing an employee to telecommute or work remotely; • Flexibility in work hours;

• Adjusting work hours around counseling or therapy appointments; • Permitting food or drinks to mitigate known side effects of medications; • Providing quieter and less distractive workspaces; • Software to remove distractions when working on a computer; and • Reapportioning job duties among workers. Accommodations can be extended to allow an employee to bring a support animal to work or have a temporary job coach on site to help with training and adjustment. The bottom line is, employers are expected to find ways, if feasible and not cost prohibitive, to help the person with disabilities be a successful employee.

Filing Complaints

A request for an accommodation doesn’t necessarily need to be in writing. Requests should be handled with the same level of review, regardless of whether it involves a physical condition or a mental health concern or some combination of both. The law allows the employer to seek input from a mental health professional regarding the employee’s condition and suggested options for accommodation. Often the request results in an interactive process to identify a feasible solution that allows the employee to remain productive. This is not to say that an employer is required to hire everyone. Companies are not required to comply with all accommodation requests, especially if the requests are cost-prohibitive, impractical or infeasible. Nor are they required to lower performance standards or productivity requirements. An employer is not prohibited from terminating an employee who is disruptive in the workplace or presents a potential danger to others. The Equal Employment Opportunity Commission oversees complaints about employer mishandling of workplace accommodations. Workers who believe accommodations for mental health conditions have been wrongly denied can file complaints and request an EEOC evaluation. Last year, the EEOC received roughly 8,400 complaints from those who claimed their employer discriminated against them due to mental health issues. That number represents nearly 30% of all claims filed against employers for workplace discrimination. It is estimated the occurrence of mental health discrimination is actually higher, as many employees are reluctant to bring a formal complaint. Unfortunately, whether an employer’s efforts to accommodate an employee were reasonable and up to expectations is often a subjective determination. Once challenged, the employer’s decision is reviewed with hindsight. Nonetheless, the EEOC looks favorably on employers who earnestly attempt to accommodate employees with disabilities. Likewise, feeble attempts at accommodation are subject to harsh outcomes. As an example, in October 2022, the EEOC ordered a company to pay $175,000 in damages to an employee who was terminated after she disclosed to her supervisor that she had a panic attack and was taking medication to treat anxiety and PTSD. Earlier in the year, the EEOC brought a lawsuit against Hobby Lobby for refusing to allow an employee with PTSD, anxiety and depression to bring her trained service dog to work (noting that customers are permitted to bring service animals into their stores). In today’s environment, it is essential for employers of all sizes to have policies that anticipate and will accommodate workers with mental health issues. All employers should face the reality that a workforce that copes with mental health disorders has become a fact of American life.

Judith Wright is a Clinical Professor of Business Law and Mosaic Senior Faculty Fellow at the Indiana University Kelley School of Business.

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