OPINION – When we think of “mental health” problems, many of us envision obvious symptoms. But mental health presents challenges precisely because it can be almost impossible to observe. This can become a problem in the workplace when an employee experiences intense anxiety or panic due to the stress of the position, and management simply expects these individuals to “walk it off.” Because observers often cannot see the employee’s turmoil, they may be dismissive, leading to a worsening working environment, poor relationships, and a less productive employee. In this situation, everybody loses.
After a series of judicial decisions taking restrictive views of the conditions covered by the Americans with Disabilities Act, Congress revised the ADA in 2008 with the Americans with Disabilities Act Amendment Act (ADAAA). The result is a more expansive interpretation of what constitutes a disability under the act. The ADA has long included mental health problems among the class of covered disabilities, but new regulations have become even more explicit in the types of disabilities covered. The regulations list a set of ailments that “[g]iven their inherent nature. . . will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity” and be covered under the act. 9 C.F.R. § 1630.2(j)(3)(ii). The regulation follows with an extensive list, which states “major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit brain function. . . .” 29 C.F.R. § 1630.2(j)(3)(iii). While the ADAAA and its implementing regulations have identified these specific conditions, that list is by no means exhaustive. The act explicitly mandates a broad interpretation of the term “disability.” 42 U.S.C. § 12102(4).
Many mental conditions impact an employee’s performance but may not be visible to the employer. And a number of mental disabilities will be triggered or exacerbated by a stressful work environment. Many loyal or proud employees will do their best and suffer in silence. They may assume that management will see their depression or intense anxiety as some kind of performance deficiency.. This is often counterproductive and causes precisely the management misperception the employee fears. When an employer is not informed, it may perceive the employee’s demeanor as job dissatisfaction or poor performance.
That is why it is critical to seek necessary medical advice and treatment. Naturally, seeking treatment is important for the employee’s own mental and physical well-being. From a legal perspective, it creates a written record for the employee and lends credence to the argument that the employee is suffering from more than “a case of the Mondays.” And obtaining treatment does not cut off the employee from claiming a disability under the act, since the ADAAA explicitly covers disabilities “without regard to the ameliorative effects of mitigating measures,” including medications, equipment, or even accommodations. 42 U.S.C. § 12102(4)(E).
This last point is critical for those suffering from mental ailments. Often the treatment is not a medication, but rather a course of treatments or therapies. Likewise, many of these disabilities are episodic, rather than continuous, afflictions. The ADA allows for intermittent leave as an accommodation, provided it does not create an untenable disruption for the employer. This might be a few hours off per week for therapy, or something more substantial, like periodic days out of the office for treatment or convalescing.
Employers cannot accommodate a disability that has not been brought to their attention. Management may be quick to suggest that you “walk it off” and work without an accommodation, but this only worsens both the working environment and the employee’s mental state. The employee can take steps to prevent this, and obtain the necessary accommodations that will allow all parties to work constructively toward good health and high productivity.
Tom Harrington is principal of The Employment Law Group, P.C. - http://www.employmentlawgroup.com/our-team/attorneys-staff/attorneys/tom-harrington/
R. Scott Oswald is managing principal of The Employment Law Group, P.C.-- http://www.employmentlawgroup.com/our-team/attorneys-staff/attorneys/r-scott-oswald/
