Dove Burns
Dove Burns ()

Employees are alleging discrimination based upon mental health conditions in record number. In 2016 alone, the U.S. Equal Employment Opportunity Commission (EEOC) received over 5,000 charges challenging employer actions based on mental health conditions and obtained over $20 million for employees and applicants who brought claims based upon discrimination or perceived discrimination. One in five adults in the United States experiences mental illness in a given year according to the National Alliance for Mental Illness. Many reputable sources report that the rates of mental illness in NYC mirror the national data. In November 2015, Mayor Bill de Blasio announced an $850 million plan with 54 separate initiatives aimed at addressing mental illness in New York City. The prevalence of these disorders therefore, has a significant impact upon the workplace and upon employers and their accommodation policies and procedures.

In light of the increased claims, and indicative of the EEOC’s focus on the Americans with Disabilities Act (ADA), on Dec. 12, 2016, the EEOC issued a publication entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights.” The publication was touted as a resource document for individuals with mental health issues. The goal of the document is to inform them that workplace discrimination and harassment because of their condition is prohibited, they are entitled to privacy in the workplace, and they may have a right to obtain reasonable accommodations to enable them to perform or retain their position with their employer. While this guidance largely interprets existing law, the announcement pushes the limits of the ADA and signals that the EEOC is likely to expand protections via a focus on enforcement. The increased scrutiny and enforcement effort will have significant ramifications for New York employers who are already struggling to keep up with the fluid employment law landscape.

The ADA protects employees and applicants alike from employment discrimination and harassment based upon mental health conditions. Employers are prohibited from refusing to employ or promote, or terminating or otherwise forcing a leave of absence based upon a mental health issue. The only exception is where an employer has objective evidence that the individual is unable to perform the essential functions of their job duties, with or without a reasonable accommodation, or would create a significant safety risk. However, the bar for establishing a safety risk is high. An employer looking to take any action based upon safety would need to be able to establish a “direct threat” or that the employee poses a “significant risk of substantial harm to self or others.”

The December 12th publication emphasizes that employers must refrain from taking action based upon “myths or stereotypes.” However, the publication simultaneously points out that workplace privacy rights prohibit an employer from asking medical questions concerning a mental health condition with limited exceptions such as in connection with a request for reasonable accommodation, or when there is objective evidence that the individual may be unable to perform his or her job or may pose a safety risk because of the condition. Determining when an employer can lawfully make medical inquiries is akin to reading tea leaves.

Additionally, pursuant to the new guidance employees may be legally entitled to a reasonable accommodation, such as altered breaks and work schedule, specific shift assignments, work from home and changes in supervisory methods, or reassignment if the person cannot perform their regular job functions even with an accommodation. Most employers are aware of the obligation to provide necessary, reasonable accommodations when requested. However, an employer’s obligation does not end there. Rather, employers have a duty to accommodate even under circumstances in which an employee has not actually requested an accommodation. Fifteen years ago, the EEOC issued enforcement guidance clarifying the circumstances under which an employer has a duty to offer an accommodation, even in the absence of a request. Employers must offer an accommodation if they: (1) know that an employee has a disability; (2) know or should have known that the employee is experiencing workplace problems due to a disability; or (3) know or should have known that the disability prevents the employee from requesting the accommodation. The nature of mental health issues makes it difficult for employers to assess whether they in fact have a duty to offer an accommodation in the absence of a request. Cognitive and emotional disorders are common and yet probing as to the existence of the same would violate the Act. Therefore, employers will be left guessing and will face liability pursuant to the Act if they erroneously perceive that an employee suffers from a mental health condition and take action as a result.

The ADA not only protects employees and applicants from discrimination that has actually occurred, it also provides protections for regarded as or perceived as discrimination. For example, if an employer perceives that an employee is suffering from anxiety and takes action accordingly thereby treating the employee differently than another whom they do not perceive as having a mental health condition, that employer may be liable for perceived as discrimination. Because applicants seeking employment are also protected by the ADA, the concept of perceived as disabilities will further complicate the hiring process. The line between an interviewee who is under-enthusiastic and one that is anxious or depressed is likely to be unclear to an interviewer. While to some degree the statute requires an employer to offer an accommodation without concrete information, employers must be careful not to take any other action based upon a perception of mental health problems. Perceived as disability claims are on the rise and are difficult for employers to defend; proving the absence of an assumption is, by its very definition, difficult.

In addition to claims of intentional discrimination or failure to provide a reasonable accommodation, employers can also face liability for a facially objective or neutral process or policy that has a disparate impact on employees with mental health disorders. For example, studies have found that employees suffering from mental health disorders struggle with absenteeism at a rate of 31 to 1 compared to employees without the same challenges. Harder, H.G., Wagner, S.L., Rash, J.A., Mental Illness in the Workplace: Psychological Disability Management (Gower 2014), page 20. Should an employer institute an absenteeism policy that is facially neutral yet impacts those with mental health disorders disproportionately, it is unclear whether the statistical data alone would be enough to establish liability.

It is advisable for employers to take proactive steps to prepare for accommodation requests, employees with apparent mental health challenges and the changing legal landscape.

Confidentiality: Employers must keep any information obtained during the interactive process strictly confidential. All medical records, including psychiatric and psychological records, must be kept separate and apart from an employee’s personnel file. Further, employers should designate one person or a small group of senior professionals to review the records and engage in the accommodations process.

Individualized approach: Employers must assess each request for accommodation individually taking into consideration that particular employee’s disability, limitations, job duties and the requested accommodation. Even if an accommodation has been historically denied, an employer must nonetheless undertake the interactive in its entirety on an individualized basis.

Reasonable accommodations process: Utilizing an established process for handling requests for reasonable accommodations will increase consistency and limit liability for employers. A written process not only gives an employee a better understanding of how to pursue an accommodation, it also encourages management to follow the steps outlined therein. It is important to note however, that employers are not permitted to deny a reasonable accommodation based upon an employee’s failure to follow the process.

Review and update policies and job descriptions: Employers’ responsibilities with regard to disabilities in the workplace are constantly evolving. Policies and procedures should be reviewed continually. Job descriptions are heavily relied upon in the interactive process and therefore need to be updated and revised. Essential job functions should be clearly identified so employers can rely on them in denying or responding to requested accommodations that would compromise any of the essential requirements.

While the guidance may appear innocuous on its face, the practical ramifications for employers are significant. Increased EEOC enforcement in this area will put employers in the precarious position of identifying mental health disorders and taking action which will inevitably lead to increased liability.