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Do’s and don’ts for employers confronted with employee mental health issues

Employers cannot afford to overlook the impact mental health may have on their business. The National Institute of Mental Health estimates that one in five people will experience a mental illness at some point in their life. Experts expect that number to increase due to the added pressures associated with the coronavirus pandemic.

Many common mental health conditions may qualify as protected disabilities under the Americans with Disabilities Act, or ADA. Under the ADA, applicants and employees with mental health conditions are entitled to privacy and reasonable accommodations unless this causes an undue hardship for an employer or poses a direct threat of harm to the individual or others.

Failing to comply with these requirements under the ADA could prove to be a costly, avoidable mistake. A jury in western Pennsylvania recently awarded an employee $285,000 in damages ($250,000 of which were punitive) for an employer’s failure to accommodate anxiety and PTSD after an employee sought two additional 10-minute breaks.

To avoid the potential cost of a violation, employers must have a plan to balance the needs of their business with their duties under the ADA. This article will provide the basic do’s and don’ts for employee mental health matters.

DON’T

When confronted with an employee who may have a mental health condition, an employer should not require an employee to disclose a mental health condition, unless it falls within an exception. In most cases an employer cannot require applicants or employees to disclose a mental health condition. An employer can only ask medical questions, including those relating to mental health, if the situation meets one of four exceptions:

  • An employee asks for a reasonable accommodation
  •  After a job offer has been made but before employment begins, so long as all employees entering the job category are asked the same questions
  • When engaging in affirmative action for people with disabilities
  • If there is objective evidence that the employee is unable to do his or her job or poses a safety risk because of a condition

Withdraw a job offer if a medical exam reveals a mental health condition, unless the exclusion is job-related. If a medical exam reveals the existence of a disability, the employer may only withdraw the offer if it is job-related and consistent with business necessity. The employer must also be able to show that no reasonable accommodation is available.

Share medical information disclosed to the employer, unless it falls within an exception. The ADA requires all medical information concerning psychiatric disabilities to be kept confidential. Employers may only disclose this information in three situations:

  •  Supervisors and managers can be told about necessary restrictions or accommodations.
  • First aid and safety personnel may be told if the disability requires emergency treatment.
  • Government officials investigating ADA compliance may be given relevant information.

Fire an employee because they have a mental health condition. An employer cannot discriminate against an employee simply because they have a mental health condition. However, an employer does not have to hire or retain an individual if there is evidence that even with a reasonable accommodation, the individual cannot perform the functions of the job or poses a safety risk.

Allow others to harass or bully an employee with a mental health condition. Harassment on the basis of having a disability is a form of discrimination under the ADA. If an employee reports the harassment to an employer, the employer is legally required to take prompt steps to end the harassment and prevent it from occurring in

the future.

DO’s

When confronted with an employee who may have a mental health condition, an employer should:

Build trust with employees. Having an environment that is accepting and understanding of mental health conditions will lead to more employees disclosing conditions and reasonable accommodations being made to obtain the best performance from each employee. An effective Employee Assistance Program and/or Disability

Employee Resource Group can go a long way toward creating a positive climate. Developing a capacity to effectively respond to mental health conditions in the workplace transcends mere legal compliance—it is a key management practice to best utilize your talent.

Carefully examine the job duties to determine what functions are essential before taking an employment action. An employer does not have to hire or retain an employee who cannot perform the essential functions of the position, even with a reasonable accommodation. Whether a particular function is essential can be determined by looking at whether the reason the position exists is to perform that among other functions. Clearly identifying the essential functions of a job, especially before taking actions like hiring, firing, promoting, or recruiting, is crucial to determine the rights of an employee or applicant under the ADA.

Do your best to reasonably accommodate an employee’s mental health conditions, while remembering not every request must be met. Employees with psychiatric disabilities can ask an employer to provide a reasonable accommodation in the form of an adjustment to the job or the work environment. While the employer can take

into consideration an employee’s preferred accommodation, the employer ultimately gets to choose among the effective options. Examples of reasonable accommodations that may be made for employees with mental health conditions include:

  • More frequent reminders of tasks and due dates
  • Quiet office space or use of devices that create a quieter work environment
  • Altered break schedules, time off from work or shift changes
  • Change in management style of the supervisor
  • Attend meetings remotely or work from home
  • Exchange non-essential job duties with another employee
  • Simple physical changes to the workplace
  • Modification of workplace policy

To show a proposed accommodation poses an undue hardship an employer must show it would be unduly expensive, disruptive, or would fundamentally alter the nature of the operation. If a particular accommodation presents an undue hardship, the employer must try to find another accommodation.

Not all employees with mental health issues need accommodations to perform their jobs. For those who do, it is important to keep in mind that the process of developing and implementing accommodations is individualized and should begin with input from the employee. Effective accommodations vary, just as employees’ strengths and job duties vary.

Remember that you can always act when there is a clear safety concern; however, make sure actions taken are grounded in evidence. An employer cannot disregard credible evidence of an employee posing a threat to another employee or the public. The risk to health or safety must be a significant risk of substantial harm and cannot be based on myths or stereotypes. An employer may take a credible safety concern into consideration when deciding whether to hire or retain an employee with a mental health condition.

Require a mental exam if the employee is a clear safety concern. When an employer has an objective reason to believe that an employee poses a clear safety concern, the employer can require the employee to undergo a mental health exam. However, the employer needs to be able to show evidence that is job-related and consistent with business necessity, which should be documented. This standard is met when an employer observes performance issues connected with a known medical condition, has been given reliable information from a credible third party, or observes symptoms indicating an immediate threat to safety.

Benjamin C. Dunlap, Jr. is managing partner at Nauman Smith, a Harrisburg-based law firm, and concentrates his practice on business and employment law.

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