Failing To Provide Accommodations for Mental Health Issues Comes At A Price
Employers must catch on: mental illness is prevalent in our workplaces.
According to the National Alliance on Mental Illness (NAMI), approximately 1 in 5 adults —43.8 million, or 18.5%—experiences mental illness in a given year, and of those adults, about 1 in 25 adults in the U.S.—9.8 million, or 4.0%—experiences a serious mental illness in a given year that substantially interferes with or limits one or more major life activities.
Remember that the Americans with Disabilities Act (ADA) prohibits employers from taking an adverse action (e.g., demotion, termination, etc.) against employees with physical and mental health impairments as long as they can perform the essential functions of the job with or without a reasonable accommodation. (This mandate is negated only if an accommodation would cause an undue burden to the employer.)
In fact, with mental health disability claims steadily increasing, the Equal Employment Opportunity Commission (EEOC) has published two new guidelines offering additional explanations and helpful examples— Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights and The Mental Health Provider’s Role in a Client’s Request for Reasonable Accommodation at Work.
Employers who ignore the rise in mental health disabilities tend to learn a lesson the hard way.
I wrote here about the stigmatization of mental illnesses. I told you that one recent study states that nearly 85% of people say they’re uncomfortable discussing mental illness at work, which can cause problems for your workplace.
That same study found that 53% said that people are not generally sympathetic toward those with mental illness.
This is a problem. An expensive one for employers. A recent case caught my eye that illustrates this point perfectly.
Employer Refuses to Provide Additional Breaks To Employee with Anxiety, PTSD
In Schirnhofer v. Premier Comp Solutions, 2:16-CV-00462, Ms. Schirnhofer, a billing assistant at Premier for several years, had good performance reviews…and mental health issues. During her employment, her anxiety disorder worsened when her grandchild died and a close co-worker left the company.
After Ms. Schirnhofer’s personality conflicts with co-workers increased, Premier’s president and her co-workers started referring to her as “Sybil” (referencing a character in the eponymous movie who suffered from mental health issues). HR noted that she should seek “medical attention,” and, eventually, Ms. Schirnhofer requested two additional 10-minute breaks as a reasonable accommodation.
Do we think two additional 10-minute breaks constituted an “undue burden”?
Not likely. Doesn’t cost anything, and it should be brief enough so as not to derail the daily schedule of the workplace.
The employer denied her request despite her physician’s recommendation that she be allowed such breaks to accommodate her anxiety and PTSD and despite HR’s recommendation to provide the accommodation.
While the jury denied other claims raised by Ms. Schirnhofer, it found that the employer had discriminated against her because of her mental health disability in violation of the ADA.
The jury awarded Schirnhofer $285,000 in damages: $35,000 in back pay, and $250,000 in noneconomic damages.
Let’s take that in for a minute. For most businesses, this is a catastrophic sum of money, and we haven’t even considered legal fees yet.
“Regarded As” Having a Disability
Interestingly, it wasn’t the interpersonal conflicts that constituted an ADA violation; rather, employees labeling Ms. Schirnhofer “Sybil” and HR’s recognition that she needed to seek medical attention swayed the jury.
Premier clearly regarded Ms. Schirnhofer as having a disability—employees and management called her Sybil—and she provided medical documentation about her need for an inexpensive (and likely free) reasonable accommodation.
Why fall on your sword instead of providing such an easy, inexpensive fix? I don’t get it.
Mental health conditions that may qualify for a reasonable accommodation are those that substantially limit one or more major life activities, including brain/neurological functions and activities like communicating, thinking, concentrating, regulating thoughts or emotions, and interacting with others. They can include:
- Generalized anxiety disorder (though less so if caused by stress at work)
- Bipolar disorder
- Post-traumatic stress disorder
- Obsessive-compulsive disorder
The EEOC notes that an employee may qualify for a reasonable accommodation if (s)he has or had a substantially limiting impairment, and, as I told you here, the ADA’s protection includes workplace discrimination based on perceived impairments.
That’s where Premier really erred here.
The Role of Mental Health Providers In The Interactive Process Is Key
It’s critical for mental health providers to understand how important their role can be in assisting with the interactive process.
To comply with the ADA, an employer must understand how the disability affects the employee’s ability to do the job. With disabilities that can be “invisible,” like mental health conditions, that can be tough to do without guidance from the employee’s mental health provider.
An employer can request information, including regarding the functional limitations caused by the disability, from an employee’s medical provider so as to understand the employee’s difficulties, how an accommodation could alleviate an employee’s limitations, and which accommodations may be appropriate.
Decreasing the stigma and providing accommodations generally benefits the workplace. Indeed, the director of state policy and advocacy at NAMI once stated, “Particularly because of the struggle they’ve been through, they’re often extraordinarily dedicated to their company and their work.”
There are steps employers can take so as not to repeat Premier’s mistakes while destigmatizing mental health conditions:
- Training. Training your managers, train your C-suite to recognize requests for accommodations for mental health disorders and that providing them complies with federal law. Most accommodations for mental health disorders are inexpensive, if not free.
- Determine whether or not an employee requires an accommodation. Actually talk to the employee about this. We call this “engaging in an interactive discussion.” Should you consult a lawyer for this discussion? Sure, absolutely, never hurts.
- Obtain from your employee or his or her doctor an understanding of how the disability affects the employee’s ability to do the job.
- Provide the accommodation. JAN provides an extensive list of accommodations for employees who suffer with mental health disorders including flexible scheduling, additional time to learn new tasks, time off for counseling, frequent breaks, and backup coverage for when the employee needs breaks, and telework, just to name a few.
- Document substantially a determination not to provide an accommodation because of an undue burden.
Accommodating mental health disorders is the law, and such disorders are pervasive in workplaces. Let’s STOP the stigmatization, and educate our workplaces. It’s a win-win for employers and employees alike.