Respond Compassionately to People with Psychological Disabilities

​Aside from common decency, there's a built-in case for a compassionate approach when reviewing accommodation requests from individuals with psychological disabilities. Compensatory and punitive damages may not be awarded under the Americans with Disabilities Act (ADA) if an employer demonstrates good-faith efforts, in consultation with the person with the disability, to identify and provide a reasonable accommodation that would not cause undue hardship on the employer.

"Every case is unique, and sometimes it is readily apparent that a reasonable accommodation is not possible," said Catherine Cano, an attorney with Jackson Lewis in Omaha, Neb. But she noted that "the ADA offers an incentive for employers that make an effort when it comes to accommodations." As she put it, "practicing empathy can go a long way."

Stigma Remains

"Communication around psychological disabilities can be particularly challenging to employers," Cano said.

Mental health issues can carry stigma, and employees may be hesitant to disclose a psychological condition, she said.

Conditions such as depression and anxiety disorder are seldom static, which means reasonable accommodation needs will change over time, said Peter Petesch, an attorney with Littler in Washington, D.C.

"With any disability but particularly with conditions that are often stigmatized, such as mental or psychological illnesses, guard the confidentiality of medical information," he said.

Maintaining Performance Standards

Some individuals with psychological disabilities may have some quirky behaviors that aren't misconduct and need to be accepted, within bounds, Petesch stated.

"Employers should address performance and safety issues in the same way they would address them for any employee," said Lori Armstrong Halber, an attorney with Fox Rothschild in Warrington, Pa., and Philadelphia.

Petesch cautioned that an employer can fall into a trap when it tries to diagnose the reasons for unacceptable behavior by an individual who has not disclosed an impairment or requested an accommodation. Employers in these circumstances may later face claims of having discriminated based on a disability—real or perceived.

Under the ADA, unless an employee notifies the employer that they have a disability and need an accommodation, the employer isn't required to do anything, Halber noted.

"From a best-practices standpoint, I think that it is the employer's responsibility to give their employees every opportunity to succeed," she added. "If an employee is struggling, engage the employee and ask, 'What can I do to support you? How can we help you succeed?' "

Be aware that another trap is creating exceptions for unacceptable conduct by individuals who disclose a psychological impairment, Petesch said. That can result in shoddy work and discrimination claims from individuals in other protected groups. Holding individuals accountable for performance and behavior—and working with employees to get or keep their performance on track—is a foundation of the ADA, he said.

Common Accommodations

Accommodations vary by individual, the work environment and essential job functions, Petesch noted.

"We are seeing an increase of accommodation requests to modify workspaces—for example, a more private or isolated workspace, telework, and even support animals—a topic I deal with multiple times a week," he said.

"Employers need to take care to separate legitimate accommodation requests by employees with valid needs from requests by employees trying to game the system—either by being forgiven for missing deadlines, preferring to work from home or using the workplace as a substitute for pet day care," Petesch said. To separate the two, he recommended that employers vet every accommodation request thoroughly and compassionately without jumping to preconceived conclusions.

Sit down and talk with the employee. Get the worker's suggestions for reasonable accommodations—sometimes these are the best ones. While the employer doesn't have to provide the employee's desired accommodation, the interactive process for identifying a reasonable accommodation works only if both sides are contributing ideas and listening. Otherwise, there may be a breakdown in the interactive process.

Accommodations that may be appropriate, Halber noted, include a modified work schedule, such as breaks; remote work; leaves of absence; and allowing beverages or food at workstations to mitigate the side effect of medication. "An employer's obligation is to provide a reasonable accommodation, not necessarily the accommodation requested by the employee," she said.

"The range of accommodations that might be reasonable is vast," said Mike McClory, an attorney with Cable Huston in Portland, Ore.

Other possible accommodations are:

• Modification of the time at work, such as earlier or later start or end times.
• Modifications of the manner of performance, such as allowing flexibility in the order in which tasks are performed, if feasible.
• Transfer to another position. This is an accommodation of last resort when not requested by an employee.

These are just a few accommodation options. "Employers need to think creatively," McClory said.

Requested Accommodations May Not Always Work

Some circumstances or jobs may not lend themselves well to accommodations, according to McClory.

In one situation, a reasonable accommodation for an employee's anxiety disorder may be to permit the worker to bring an emotional support dog to work. But not if the employee needing accommodation works with another employee who has an anxiety condition that is triggered by dogs.

In another example, McClory said, consider an employee who is diagnosed with a psychological disability that causes the employee to panic where there is low lighting, such as in the museum where the employee works. It may not be reasonable to increase the lighting in the museum if that fundamentally changes the nature of the museum's displays, he said.

"The interactive process requires that the facts of each instance be weighed individually," he explained.

Danger to Self or Others?

What if the employer is reasonably concerned that a worker with a psychological disability poses a danger to themselves or others?

If the employer truly believes there is an imminent risk of harm to the employee or others, an option would be to place the employee on leave and initiate the ADA interactive process, said Caroline Larsen, an attorney with Ogletree Deakins in Phoenix.

The employer's actions should be proportional under the circumstances, Cano said. "That may mean sending the employee home for the day, referring the employee to an EAP [employee assistance program], requesting a fitness-for-duty examination or contacting law enforcement."