By Alexandra Howell

Law360 (December 22, 2020, 10:01 AM EST) --

Alexandra Howell

With COVID-19 numbers and stay-at-home orders surging across the U.S., employers nationwide are struggling to comply with an ever-changing landscape of rules, regulations and human resources challenges.

The infection rate is but a fraction of the COVID-19 landscape for workplaces — the virus and its resulting isolation mandates are also contributing to a surge of mental health disorders and illnesses. And those with preexisting disorders are disproportionately suffering.[1]

This surge in mental health conditions, not unlike the surge in COVID-19 itself, creates complex legal and ethical obligations for employers related to compliance with the Americans with Disabilities Act and the state and local companion laws that aim to achieve similar objectives.

In an average year, one in five adults experiences some form of mental illness, and one in 25 adults experiences a serious mental illness, of the type that limits major life activities.[2] But this year, the Centers for Disease Control and Prevention has reported that prevalence of symptoms of anxiety disorders approximately tripled in the second quarter compared with the second quarter of 2019.[3]

Numerous measures of mental health-related symptoms and illness were shown to have been similarly elevated, including symptoms of trauma and stress-related disorders, suicidal ideation and substance abuse.[4]

The holiday season increases the prevalence of mental health disorders during a regular year, but the pandemic has only exacerbated this trend.

Those with preexisting mental health and psychiatric disorders disproportionately experienced mental health conditions related to the pandemic.[5]

When the general population suffers, so too does the workforce.

Imagine the common scenario in which an employee comes to human resources to discuss their lagging work performance in a review at the end of the year.

The employee shares that his or her work has been adversely impacted by a struggle with mental health, which has been exacerbated by quarantine.

The employee reports that stress and anxiety have taken their toll, to the point when the employee has difficulty concentrating, meeting deadlines, and relating to colleagues in positive and productive ways.

In this situation, the employer should be thinking about whether the ADA and its accompanying state and local laws apply, and if so, whether the employee is entitled to reasonable accommodations.

The first level of inquiry is whether the mental health struggles the employee describes constitute a disability under the ADA.

The ADA contemplates mental illness in the same way it contemplates physical illnesses. A mental impairment that substantially limits one or more of the individual's major life activities is a disability under the ADA.[6]

In 2008, Congress passed a series of amendments to the ADA, which broadened the statute's reach, and effectively lowered the standard for establishing a disability.

Today, the U.S. Equal Employment Opportunity Commission's guidance notes that a substantially limiting condition can make life activities "more difficult, uncomfortable, or time-consuming to perform compared to the way most people perform them."[7]

Major life activities can include the ability to concentrate, communicate, and to regulate thoughts and emotions. They include eating, sleeping and caring for oneself.[8]

For perspective, in an average year, one in five adults experiences some form of mental illness, and one in 25 adults experiences a serious mental illness, of the type that limits major life activities.[9] Many of those people suffering from serious mental illnesses are in the workforce right now.

With mental health issues that are affected by stress, as many are, the demands of positions at all levels can present as performance issues. 

In our example, whether the employee's difficulties with stress at work constitute a disability is generally dependent on whether other life activities, beyond the particulars of the employee's job, are affected by their mental health.[10] The inquiry is quite fact-specific, and may be dependent on the particulars of regional case law.

Assume that during our performance review, we correctly determine that the employee does have a disability as defined by the ADA.

The next fact-specific inquiry would be an analysis of what the essential functions of the position are, whether accommodations are needed, and whether those requested accommodations are reasonable. Employees must be able to perform the essential functions of their jobs with or without reasonable accommodations.[11]

Our employee asks to be absolved of certain high-stress job responsibilities, and a puzzled manager is unsure of whether this request is reasonable.

Generally, an employer is not required to eliminate an essential function of a position to accommodate an employee's disability, but the request to eliminate a responsibility could be reasonable if the function to be eliminated is not essential.[12]

Employees are entitled to reasonable accommodations that would allow them to perform the essential functions of a position, unless the accommodation sought poses an undue hardship on the employer.[13]

Employers have to be right about the classifications they are making — e.g., the determinations of reasonableness and whether a task constitutes an essential function.

Reasonable accommodations might appear differently for different people suffering from mental illness, and certainly appear very different from those accommodations common to physical impairments. For example, it is easy to see how a standing desk could be a reasonable accommodation for an employee with a back injury.

In our performance review example, however, reasonable accommodations may include changes to how feedback is communicated, written instructions from managers who do not normally provide them, permanent work-from-home arrangements, and alternate working schedules.[14]

The ADA requires an interactive dialogue between employers and employees, in which employers ascertain the precise job-related limitations imposed by the individual's disability and consider how those limitations could be alleviated with a reasonable accommodation.

The dialogue likely should continue over the course of several meetings, beyond the performance review meeting in our example. Both the employer and the employee should be identifying potential accommodations and assessing the potential effectiveness each potential accommodation could have in enabling the employee to perform the essential functions of the position.[15]

Practically speaking, there are two things employers can do right now to improve the culture of a workplace around matters of mental health and reduce the possibility that mistakes are made around these issues.

First, a company should always have a well-written accommodations policy that provides case-by-case assessments of accommodations and job functions.

What constitutes a reasonable accommodation for one position is not necessarily reasonable for another. One employee suffering from anxiety may have a disability under the ADA, while another employee also suffering from anxiety may not as the term is defined by federal, state or local law.

Second, employers should start a productive workplace dialogue about mental illness that is free from stigma and judgment — and be mindful of protecting employees' privacy

This dialogue necessarily requires a basic understanding of mental illness by all managers, and the particular impact of COVID-19 on mental health disorders. Mental illness can manifest into personality attributes that make social interactions a challenge. For many managers, it may be hard to understand a disease that manifests into socially inappropriate behaviors and moods — i.e., confusion, argumentative behaviors, paranoia and fatigue.

When managers are trained, they are less likely to make mistakes that could result in costly liability determinations for employers.

For the manager who is giving the performance review in our example, being equipped to ask the right questions of the employee is critical to ensuring the employee gets the necessary accommodations, and that the employer continues to run a productive and compassionate workplace.

Clarification: This article has been updated to clarify the nature of managerial changes as reasonable accommodations under the EEOC's mental health guidance.

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Alexandra Howell is counsel at Potomac Law Group PLLC.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] U.S. Center for Disease Control and Prevention, Morbidity and Mortality Weekly Report, August 14, 2020, Vol. 69, No. 32, p. 1053. https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6932a1-H.pdf.

[2] National Alliance on Mental Illness, https://www.nami.org/mhstats.

[3] Id.

[4] Id.

[5] Id.

[6] 29 CFR § 1630.2(g).

[7] Id.

[8] https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights.

[9] National Alliance on Mental Illness, https://www.nami.org/mhstats.

[10] See e.g. Tinsley v. Caterpillar Fin. Servs., Corp, 766 F. App'x 337 342-44(6th Cir. 2014) (Plaintiff failed to demonstrate that her impairment substantially limited her from either a class of jobs or broad range of jobs in various classes. A condition that limits an individual from performing only one job that happens to be stressful is generally not a disability).

[11] 42 USC § 12111(8); 29 CFR §1630.2(m).

[12] https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights.

[13] 42 USC § 12111(10)(A); 29 CFR § 1630.2(p)(1).

[14] https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights.

[15] 29 C.F.R. § 1630, Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans with Disabilities Act §1630.9.).

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