By Vin Gurrieri

Law360 (June 18, 2020, 9:46 PM EDT) -- A global pandemic and nationwide civil unrest over police violence have employers increasingly eyeing ways to augment the mental health and wellness services available to their employees. But those well-intentioned efforts could land businesses on the wrong side of the Americans with Disabilities Act.

Over the past few months, a cascading series of events starting with the COVID-19 pandemic that forced many workers to start working remotely and a series of nationwide protests sparked by the killing in Minnesota of George Floyd have set the stage for many people to feel anxious and on edge.

While there was already a growing focus by employers on mental health issues over the past few years, the COVID-19 pandemic has exacerbated the issues people face because more people are alone and socially isolated, prompting employers to do more, according to Maria Greco Danaher, a Pittsburgh-based shareholder at Ogletree Deakins Nash Smoak & Stewart PC.

"Even before this COVID situation, the spotlight was moving toward mental health issues," Danaher said. "Over the last year-plus, there's been an increased focus on mental health issues ... We're in a stressful work environment, and the realization has become more clear that we need some way to mindfully deal with this stress and mend some of those difficulties that have affected people's contentment with their job."

Easing the Mental Load

Employers are already paying some attention to workplace mental health, and it will only increase as the year goes on, said Michelle Barrett Falconer, co-leader of Littler Mendelson PC's leaves of absence and disability accommodation practice group.

She said that workplace mental health issues generally fall into two buckets: General stress or apprehension that workers, such as those who were suddenly thrust into teleworking, are experiencing as they adjust to new routines that blur their home and work lives, and people who may already have a mental health condition that has been exacerbated in recent months.

Employers were quick to recognize the first of those circumstances when the pandemic hit, she added, noting that they sought and found creative ways to help blunt those stresses.

For example, some businesses that had child care benefits for workers adjusted those benefits, even though children have been home from school, to help working parents by setting up web-based craft projects for kids that can keep them occupied for a while.

Other things employers are doing, according to Danaher, include simple actions such as making wellness apps available or adjusting policies to allow workers more flex time throughout the day if they're teleworking.

While everyday stress generators aren't things "typically covered" under the ADA, Falconer said it's not impossible that they could form the basis of an ADA claim if a "special set of circumstances" arises and a doctor is able to say that a person has developed a condition because of the pandemic.

"We may see some of that," Falconer said. "It may absolutely come out during this pandemic that we start to see doctor's notes that says, 'Due to the current situation, [a person] has developed anxiety and she needs an accommodation for that.'"

Employee Assistance Programs

But beyond simple steps to help workers navigate their way through the day, some employers are choosing to take a more formal approach to mental wellness by implementing or beefing up so-called employee assistance programs, which make counseling available for any worker.

Debbie Kaminer, a professor of law at Baruch College's Zicklin School of Business who specializes in employment law and religion in the workplace, said that employees are protected under the ADA if they are disabled, which is defined as either having a physical or mental impairment that substantially limits a major life activity or being regarded by their employer as having such an impairment.

Kaminer pointed out that there is a "potential risk" if employers refer workers to an employee assistance program and "make the kind of comments or [use] language [like], 'You seem so severely anxious' or 'so severely depressed that I think it'd be impossible for you to hold down any job now,'" in which employees "could be viewed as disabled by the employer, which means they would have standing under the ADA."

Separately, if an employee approaches an employer seeking an accommodation for, say, clinical depression, or another disability that falls under the umbrella of the ADA, it triggers employers' legal obligation under the statute to engage in the so-called interactive process. That's when workers and their employer discuss any reasonable accommodations that are needed for a worker to be able to do their job.

When it comes to mental health issues in particular, Danaher said, "What's happening now is it's a constellation of events where this issue can't be ignored whereas before it was something people didn't really want to talk about [because] it seemed too personal."

"When somebody would talk about being depressed ... the employers would say, 'Well, that's not any of my business,'" she said. "And now they're realizing that yes it is, and working at home [has] not only has conflated our home lives and our work lives, but it's highlighting some of the issues that overlap between work and home — and mental health is one of them."

Tricky Situations

But where things could get especially tough for employers isn't when an employee approaches them seeking an accommodation, but rather when they only hint at the existence of a mental health issue.

One scenario that employers may encounter, particularly as stresses from the pandemic and social unrest mount, is workers who ask for a day off by citing depression, anxiety or a feeling of being overwhelmed, according to Danaher, who said this situation leaves employers with a dilemma.

Employers in that situation need to ask themselves if what the employee is citing is the sort of condition that's covered under the ADA and, if so, whether the employer can accommodate it, Danaher said.

"These are really difficult questions for employers, but the good employers, knowledgeable employers and caring employers are taking the time and effort to go through those steps," Danaher said.

Moreover, some employers may be concerned that if they grant the worker that day off, they are "conceding" that the worker has a disability that brings the ADA into play and leaves them open to legal claims later on, according to Danaher.

"Should [employers] be worried about that? Probably not if what the employee is asking for is something to which they are entitled," like a paid day off they have accrued, she said.

Falconer, for one, said if a worker makes a one-off request for a mental health day, it likely won't be enough to put an employer on notice that a person is disabled, thus triggering employers' legal obligation to engage in the accommodation process under the ADA or leave law. But if that individual does it regularly, it may be a different story.

"If you change the fact pattern, and the person is calling in day after day with a similar excuse or problem, that might put you on notice that the person may have some type of disability or medical condition for which an accommodation might be warranted or for which a leave of absence might be warranted," Falconer said.

Breaking the Taboo

While numerous employers may increasingly be trying to help workers by making mental wellness services available, the topic still largely flies under the radar at many American businesses.

Falconer, who has multinational clients based in other countries such as the U.K., said her experiences have taught her that companies overseas focus on trying to start conversations with workers about mental health issues much more than their U.S. counterparts, who often fear litigation.

"Because we're so focused on privacy and employers are concerned about, 'Well, if I have knowledge of something, will somebody say I'm discriminating against them?'" Falconer said. "And so it's just a very different approach in the United States, and I think the unfortunate byproduct is that sometimes people feel their mental health issues will stigmatize them as opposed to being able to open up and say, 'I'm struggling with something and I need a resource to be able to help me.'"

But even though employers may harbor concerns about legal risk that goes along with addressing workers' mental health, Danaher said she believes the pandemic has really clarified that there's "a need for those actions" and "a need for that attention."

"Employers that do handle these questions in a productive way, consistently among their workforce, are the employers that are going to keep those people longer and be more trusted when it comes to other issues," she said.

--Editing by Brian Baresch and Jay Jackson Jr.

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