Now, more than ever, a spotlight has been placed on the importance of mental health and the often-overlooked need for people to consider and address their mental health needs. This prioritization of mental health has flowed through to the workplace, impacting how employers interact with their employees. Specifically, employers must consider the circumstances in which they may be required to provide an employee with a reasonable accommodation and/or a leave of absence based upon an employee's mental health condition, as well as what that reasonable accommodation may look like based upon the employee's unique circumstances.
What is a Mental Health Condition and What Does the Law Require?
Employers are likely familiar with statutes such as the Americans with Disabilities Act ("ADA"), the Family and Medical Leave Act of 1993 ("FMLA"), and the New Jersey Law Against Discrimination ("NJLAD"). However, they may not be aware that these statutes apply to both physical and mental health conditions. The DSM-5 defines a mental disorder as "a syndrome characterized by clinically significant disturbance in an individual's cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning." In other words, an individual with a mental health condition may have difficulty functioning in work, family, or social situations. Examples of such conditions may include anxiety disorder, depression, attention deficit/hyperactivity disorder (ADHD), bipolar disorder, and schizophrenia.
Because the ADA, the FMLA, and the NJLAD address different concepts, they must be analyzed separately.
Under both the ADA and the NJLAD, an employer is obligated to provide a "reasonable accommodation" to a qualified individual with a disability and engage in an interactive process with the employee to assess whether the employee has a disability that can be accommodated without creating an "undue hardship" for the employer. Generally, a "reasonable accommodation" is a modification or change to the job, the way the job is done, or the work environment that allows a qualified employee with a disability to perform the essential functions of the job, and may include modifications of working conditions or supervision techniques, implementation of equipment, or even an unpaid FMLA-protected leave, depending upon the employee's specific circumstances.
Critically, covered employers must provide a reasonable accommodation under the ADA or NJLAD to employees with mental health conditions in the same manner as would be provided to those with a physical disability. This means that employers cannot simply ignore an employee's disability based upon a mental health condition, but, instead, must engage in the interactive process with that employee to determine possible reasonable accommodations.
What are Potential Reasonable Accommodations Under the Law?
In engaging in that interactive process, an employee, their medical provider, and the employer may each suggest potential accommodations. Potential accommodations for mental health conditions may include alterations to the employer's policies or the employee's work schedule so as to make it more flexible, such as by telecommuting or working from home, part-time work hours, job sharing, adjustments in the start or end of work hours, compensation time or "make up" of missed time, breaks according to individual needs rather than a fixed schedule, more frequent breaks, or breaks to call professionals and others needed for support, allowance of beverages or food at workstations to mitigate the side effects of medications, or on-site job coaches. Moreover, reasonable accommodations under the ADA and NJLAD may also include paid or unpaid leave for treatment or recovery, including intermittent leave for therapy and other related appointments.
Employers should also consider whether it would be appropriate to obtain equipment or modify working conditions to address the employee's specific mental health condition, such as: (i) reduction and/or removal of distractions in the work area; (ii) soundproofing or visual barriers between workspaces to reduce noise or visual distractions; (iii) private offices or workspace locations; (iv) reduction of workplace noise that can be adjusted, such as telephone volume; (v) increased natural lighting or full spectrum lighting; (vi) noise-cancelling headphones or a headset with music to block out distractions; (vii) white noise or environmental sound machines; (viii) software that minimizes computerized distractions such as pop-up screens; or (ix) handheld electronic organizers, software calendars, and organizer programs.
Further, certain mental health conditions may require modifications to supervision techniques, such as providing additional training, modified training materials, recording equipment to allow for review of meetings and training sessions, or additional assistance and/or time for orientation activities, training, and learning job tasks. Employers should consider whether to regularly schedule meetings with an employee to discuss workplace issues and productivity, additional forms of written and visual tools, communication of assignments and instructions in the employee's preferred learning style, and the implementation of tools such as daily "to-do" lists, step-by-step checklists, and typed minutes of meetings. The critical aspect of any accommodation, including one for a mental health condition, is that it is flexible and creative and provides a workable solution for all parties.
The FMLA also provides protections to employees of covered employers for serious mental health conditions by providing eligible employees with up to twelve workweeks of protected, unpaid leave in a twelve-month period. Employers must also continue group health insurance coverage for an employee on FMLA leave under the same terms and conditions as if the employee had not taken leave, and must restore the employee to the same or virtually identical position at the end of the leave period.
In sum, employers should consider their employees' mental health needs as seriously as their physical health needs, and should be aware of the protections afforded to employees by the ADA, FMLA, and NJLAD. Employers must work with employees to determine whether any accommodations or leave may be needed as a result of a mental health condition, and specifically, proactively engage in the interactive process to determine which accommodations may be appropriate. Importantly, employers must work to balance the need for providing reasonable accommodations to employees with the need to maintain confidentiality regarding employees' medical conditions. There is no one-size-fits-all solution to these issues, and it may 3 4868-1273-1880 be prudent for employers to consider retaining competent counsel to work through potential accommodations based upon specific employees' circumstances.
Authors: Lindsay A. Dischley, Practice Group Leader of the CSG Law Employment Law Group, represents employers in all aspects of employment law including litigation, investigations, counseling and training. She can be reached at [email protected] or (973) 530-2110.
Brigitte M. Gladis, Counsel in CSG Law Employment Law Group, has more than a decade of experience litigating complex employment and commercial matters in New Jersey federal and state courts. She can be reached at [email protected] or (973) 530-2166.
