Yes. The American Disabilities Act (ADA) protects employees with mental health impairments just as the Act protects employees with physical disabilities, if the employee can perform the essential functions of the job and the accommodation does not impose an undue burden on the employer. Employers are prohibited by the ADA from taking retaliating or discriminating against employees with mental health impairments.
What are Employers required to do?
To comply with the American Disabilities Act, Employers need to engage in the interactive process to understand how the disability affects the employee’s ability to do the job. Employers should request information, regarding the functional limitations caused by the disability, from an employee’s medical and/or psychiatric or behavioral health provider to comprehend the nature of the employee’s difficulties. This information can help the employer understand how an accommodation could alleviate the employee’s limitations and which accommodations may be appropriate. Your organization should ensure that managers and supervisors are prepared for when employees request accommodations for both mental and physical disabilities.
Below are several tips to consider:
- Training: provide real and interactive training to managers and human resources to recognize requests for accommodations for mental health disorders.
- Engage in an interactive discussion: In Determining whether an accommodation is reasonable and does not unduly burden the employer, consider talking with the employee about their accommodation request. Also, consult with your attorney before engaging in this discussion.
- Obtain information from the employee’s doctor of an understanding how the disability affects the employee’s ability to do the job.
- Provide the accommodation. Jobs Accommodation Network (JAN) provides an extensive list of accommodations for employees who suffer with mental health disorders, including ones like flexible scheduling, additional time to learn new tasks, time off for counseling, frequent breaks, and telework.
- Document, Document, Document. We cannot emphasize this enough. If your organization determines not to provide an accommodation because of an undue burden, document the reasoning behind the determination and how the request imposes an undue burden to your organization. As stated in the point before, we recommend you consult with your attorney when making this decision. Documentation will help mitigate the company’s risk in litigation.
Having the appropriate insurance coverage
in place will also help to protect your organization in the event of an
employment related claim. Employment Practice Liability Insurance (EPLI)
provides coverage for employers against claims by employees alleging
discrimination (based on sex, race, age, or disability), harassment, or
wrongful termination. Many EPLI policies
are written in combination with Directors & Officers Liability
coverage. There is no “standard” EPLI insurance and therefore you should
review your policy thoroughly with your insurance broker.
Let us know if you have any questions regarding EPLI or would like us to provide you with a quote. We are here to help.