I and my law partner, Laura Rubenstein, recently lectured to one of Baltimore’s latest Goldman Sachs 10K Small Business cohorts.  As always, the group was attentive, intelligent business owners and thirsty for advice in dealing with employees and legal issues they face.  One issue which came up and that has been a very real recent challenge in workplaces is accommodating mental health concerns.  Between the COVID pandemic, political turmoil and recent Supreme Court rulings, employers are faced with employees who are not operating at peak performance and frequently complaining of fatigue, distraction and a bevy of emotional turmoil mirroring symptoms of PTSD or other mental health issues.  The question from many employers and HR professionals is “do I have to tolerate this?”  There is a practical answer and a legal one.  

From a practical perspective, finding good employees is normally difficult; in the current economic environment, it can feel like searching for a needle in a haystack. Before employers start to complain about that employee not operating where they normally do or where they should, the employer needs to consider the reality of everyone’s current situation and the costs of losing an employee who may be currently mentally disengaged. Sometimes a little support and empathy are far more effective than crafting a performance improvement plan.

From a legal perspective, depending on the mental health condition and its impact, the employer may have to make accommodations under the Americans with Disabilities Act (ADA) or equivalent state protections.  Typically, under the ADA, for medically confirmed mental health conditions, employers need to work with employees to make reasonable accommodations for their health conditions provided the employee can still perform the essential functions of the job or the employee doesn’t pose a "direct threat" to their own safety of the safety of others.  Employers can’t rely on myths or stereotypes about mental health conditions when deciding whether employees can perform a job or whether they pose a safety risk; employers must have objective evidence that an employee can't perform or creates a significant safety risk, even with an accommodation.

What is a reasonable accommodation for those suffering from a mental health condition runs the spectrum from time to attend sessions with medical providers, providing altered break or work schedules, quiet work areas or working from home.  The EEOC has even suggested that unpaid leave or reassignment to another job which may be available may be a reasonable accommodation if that leave will help you get to a point where you can perform those functions. Because an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication, to get an accommodation, the employee must first request one.   The employer has the right to ask specifics about how the condition’s impact to the employee’s work and may ask for a letter from the employee’s health care provider documenting the mental health condition and need for an accommodation because of it.

If you have questions in considering accommodations for an employee or avoiding disability discrimination, feel free to reach out to RKW to assist you.

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