Just one month in, it seems clear that 2021 is going to be another difficult year. All signs point to surpassing 600,000 deaths from COVID-19¹. With no end in sight to the pandemic, a shrinking economy, and a rapidly changing workplace landscape, we have our work cut out for us. Beyond the economic and public health challenges we face from COVID-19 itself, the need for social isolation to combat the virus spread has caused alarming increases in mental health diseases and disorders. These mental health issues directly translate to challenges around productivity within organizations. It is critical that employers meet the challenges that mental health issues present to employees in productive, lawful, and compassionate ways. The upside of these efforts is that addressing these challenges is both good and good for business.
The U.S. Center for Disease Control and Prevention (CDC) completed a series of surveys in June of 2020 to assess the impact of the COVID-19 pandemic on matters of mental health². Among study participants, an astonishing 40.9% reported experiencing an adverse mental or behavioral health condition.³
The CDC survey found that 30.9% experienced symptoms of an anxiety or depressive disorder; 26.3% experienced symptoms of a trauma and stressor-related disorder associated with the pandemic; and 13.3% started or increased substance use to cope with stress or emotions related to COVID-19⁴. The CDC reported that “the prevalence of symptoms of anxiety disorder was approximately three times those reported in the second quarter of 2019 (25.5% versus 8.1%), and prevalence of depressive disorder was approximately four times that reported in the second quarter of 2019 (24.3% versus 6.5%).”⁵
These mental health crisis indicators are troubling for myriad of reasons, not the least of which is the realization that the participants in this study are quite literally the workforce in America right now. At the moment, approximately 42% of the U.S. workforce is working from home on a full-time basis⁶ . The days of employers expecting that employees maintain a bright line between working lives and personal lives are over as increased numbers of employers are temporarily or permanently switching to remote working arrangements. If 40.9% of our population is suffering from a mental health disorder⁷, and blurring the lines between work and home is the new reality of much work in America, employers have an urgent need and moral responsibility to do their part to alleviate the mental health crisis of this moment. The good news is, if confronted strategically, there is a lot that can be done to help employees, help productivity, and therefore, help the bottom line.
Under the Americans with Disabilities Act (ADA), mental illnesses receive the same treatment as physical illnesses. A mental impairment that substantially limits one or more of an individual’s major life activities constitutes a disability under the ADA⁸. Major life activities can include limitations to the very skills critical to success as an employee including concentration, the ability to communicate, and the ability to regulate thoughts and emotions in socially appropriate ways⁹. By definition, substantially limiting conditions make life activities more difficult, uncomfortable, or time-consuming to perform than they would for the average person.¹⁰
If a mental health condition meets the definition of a disability and the condition affects a qualified employee’s job performance, the employee may be entitled to a reasonable accommodation.¹¹ Granting the accommodation request is not required in situations where it would impose an undue hardship on the employer, but denying an accommodation request should be very carefully considered due to the protected status of the employee. The determination must be legally sound and well-advised. In short, it needs to be right.
Of course, employees must be able to perform the essential functions of their jobs with or without reasonable accommodations.¹² Technically, employers are not required to remove essential functions to accommodate employees’ disabilities.¹³ Unlike the myriad of employment laws assuming employer/employee relations are adversarial by nature, the ADA requires a dialogue—an interactive process of requests, responses, and solutions.¹⁴ This process is quite literally the opposite of the theoretical separation between work life and home life.
The reality of mental illness and mental health disorders is that they are not only contained within the realm of home life. Struggling employees frequently face performance issues at work.¹⁵ Employees and employers are each in genuinely precarious positions. The employee has a legitimate medical condition that is jeopardizing their ability to earn a living and receive medical care to manage their condition. This balancing act may cause more stress, which ultimately causes a more unstable situation. Managers may very well empathize, while also worrying about the effect of the employee’s behavior and performance on morale. They may know their legal obligations, but wonder about the optics of saying ‘yes’ to a working arrangement for a struggling employee when they have consistently said ‘no’ before. They know there is liability risk with disciplinary action, but they also know that something must be done.
The important thing to remember is that there is not a one-size-fits-all approach to managing these difficult situations. Each should be assessed on its own merit, guided by lawful policies, implemented by managers prepared to compassionately and lawfully craft solutions.
Granting an accommodation request will likely improve an employee’s performance and re-stabilize that employee’s role in the organization. The employee asks for accommodation because they believe the request will allow them to perform their job. The employer wants the employee to perform well. In this way, saying ‘yes’ may not only be required, but desired.
First, managers should be trained to understand and recognize the symptoms of some of the most common mental health conditions. For example, depression can result in irritability, frustration, restlessness, difficulty concentrating, remembering details, and making decisions.¹⁶ An employee having interpersonal issues may be struggling because of depression and therefore have a disability that places them in a protected status. Managers equipped to recognize this dynamic are likely to manage accordingly and prevent costly mistakes in the long term.
Second, managers should be trained to properly handle accommodations requests around mental health. Accommodations are unlike those requested for physical illness in many ways, notwithstanding the two are covered by the same laws. The EEOC notes that examples of accommodations could include altered break and work schedules, as well as remote working arrangements.¹⁷
Third, employers should always maintain a current, comprehensive disability policy that includes and contemplates disabilities and accommodations around mental health. Employees who are struggling with mental illness could be members of a protected class of individuals under the ADA, and if so, are potentially entitled to additional job protections under state and local law. The process for requesting and granting reasonable accommodations is designed to be interactive, and each communication on the issue should be carefully crafted and well-researched.
Employers arguably represent the institution most connected to the general population. If we know that our population is struggling, we know that our workforce is struggling too. It quite literally pays to confront mental health challenges in a productive, strategic manner. The interactive dialogue required by the ADA can actually improve the culture of the organization and improve employee productivity.
If the experience of COVID-19 has taught us anything, it is that we must start to think about work differently. That means thinking about mental health in the same way we think about physical health, and creating compassionate organizations that recognize the urgent need to address both.
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• Joined EPS in September 2020
• Counsel; Potomac Law Group, PLLC
• Adjunct Professor; Hofstra University
• Adjunct; City University of New York School of Law
• Associate; Archer, Byington, Glennon & Levine, LLP
• Associate; The Scher Law Firm, LLP
• Assistant District Attorney; Nassau County District Attorney’s Office
• Summer Law Clerk; U.S. National Labor Relations Board, Region 29
• Research Analyst; Long Island Federation of Labor, AFL-CIO
• B.A., Sociology, State University of New York at New Paltz
• J.D., City University of New York School of Law
• Licensed attorney, New York, 2011