Mental Health Compliance under the ADA
In the days before the ADA, there was an old adage that said “You don’t have to be crazy to work here, but it helps.” Now, however, under the ADA, help is available – and mandatory. Enforced by the EEOC, the ADA “prohibits employers from discriminating against qualified employees (and job applicants) based on a disability, including certain mental health conditions.” An employee who meets the qualifications defined under the ADA is someone with a mental impairment that substantially limits one or more major life activities (like concentrating and thinking, and major bodily functions like neurological and brain functions), and who meets the skill, experience and education requirements of the job.”
Four key requirements that employers must meet in the case of employees to whom the above conditions apply are the following:
Not to discriminate based on mental health conditions.
To keep mental health information private and confidential.
To make necessary adjustments and provide reasonable accommodations to support qualified employees.
To train supervisors and managers to ensure they understand and comply with the ADA requirements.
The first two conditions above are self-explanatory. The third, reasonable accommodations, might include – but is not limited to – the following:
Modified break and work schedules. (Flexibility in timing can make a big difference.)
Quiet office space or devices. Creating a calm environment can enhance focus and productivity.
Changes in supervisory methods. (Tailoring management styles to individual needs.)
Specific shift assignments. (E.g., adjusting shifts to better suit the employee’s needs.)
Granting permission to work from home. (Remote work options may offer better mental health.)
Permission to bring a service animal. (Service animals can provide emotional support.)
Prompt response is important – but not at the risk of making assumptions, which can cause problems like stigmatizing or stereotyping. Any accommodations made should be reasonable for both the employee and the employer. Both HR and line management should be involved in an interactive process with the employee to make such a determination. If no such accommodation can made, flexible leave might prove to be an alternative, whether paid or unpaid.
Discussing such a situation with an employee is re naturally difficult and sensitive. Suggested steps or preparations include the following:
Choose a private location free of distractions
Allow sufficient uninterrupted time
Pay attention to nonverbal indicators (e.g., facial expression, tone, posture, etc.)
Listen attentively, demonstrate concern (vs. impatience or annoyance)
Consider requests for reasonable accommo-dations (which may be required under ADA)
Listen to what the employee is NOT saying – what is being avoided may offer clues, etc.
Consider work-related factors – anything that might contribute to or exacerbate the employee’s condition
Explore any reluctance to talk on the part of the employee. E.g., would they be more comfortable with a different interviewer?
Only take notes after the conversation. Doing so during the meeting could cause discomfort and/or reluctance to talk.
Plan follow-up steps with management team based upon the conversation.