June 01, 2020
  • Businesses, workers must discuss accommodation requests.
  • Legal uncertainty over leave as a reasonable accommodation.

Psychological distress triggered by the coronavirus pandemic could force employers to address the legally murky area of whether leave is a reasonable accommodation.

One-third of nearly 10,000 Americans surveyed by the Pew Research Center in March and April said they’ve experienced heightened psychological distress, such as anxiety, sleeplessness, or depression. The Equal Employment Opportunity Commission, which enforces the Americans with Disabilities Act in the workplace, acknowledged in its pandemic guidance that employees with pre-existing mental health conditions could have a harder time adjusting to life—and work—during a public health crisis.

The ADA protects workers whose mental-health conditions qualify as a disability, but businesses can, and should, step in where those protections end by offering employee-assistance programs or other resources to ease work-related stress, several management and labor attorneys told Bloomberg Law.

Employers must field requests for accommodation from workers with mental-health conditions that qualify as a disability as well as from those who express a more general fear related to the pandemic. An employer might then have to determine if requested leave is an appropriate accommodation, depending on its duration. 

. . .

Workers under the ADA must ask for an accommodation for a mental-health condition, which then triggers an interactive dialogue with the employer, according to the EEOC. The law requires businesses to accommodate a worker whose mental-health condition qualifies as a disability, and a request for an accommodation must be treated the same as one for a physical disability.

Businesses also have a right to ask a doctor to verify a worker’s mental-health condition—another aspect that could be complicated by the pandemic because of provider-access issues and concerns over exposure and social distancing.

Some lawyers believe requests for mental-health accommodations could spike, especially in return-to-work scenarios.

“I suspect there might be more of these conversations happening,” Shaylyn Cochran, a Cohen Milstein partner who represents employees, said of workers notifying employers for the first time about a mental-health concern.

Disability? Or General Fear?

Whether a mental-health issue rises to the level of a disability covered under the ADA is a question that should be answered by a medical professional, not the employer, Cochran said. A disability is defined as an impairment, either physical or mental, that substantially limits a major life activity like sleeping, concentrating, communicating, and working.

Workers can determine in consultation with a medical professional what kind of accommodation to request of an employer, and that begins a dialogue known as the interactive process, she said.

The complete article can be accessed here.