Editor's Note
Some Disabilities Are Invisible
Mental, emotional, and other invisible conditions can be disabilities requiring accommodation under the ADA. This can include major depression, PTSD, long Covid, neurodivergence like ADHD and autism, and any other condition that substantially interferes with a person's life and work.
When someone says, "I'm having a hard time because of my mental health," the ADA may apply. This is not the time to say, "Well, if you would just focus and try harder, I'm sure things will improve." "Try harder" is never the right advice for someone having mental or physical health issues. They have been trying harder. They are not okay. And they would not be talking to you about it if they had any other choice.
The other important thing to recognize is that you probably have no idea what they are dealing with or capable of doing. This is not because of anything bad about you. It's because first, you are not them. And second, humans really enjoy thinking that their own experience is the same as other people's.
We each have our own unique, artisan, organic, local, gluten-free, dolphin-safe, and bespoke filters on reality that interpret the world. It's very fancy and there are infinite varieties. It's why we don't all agree. It's also why we have science and art and philosophy and religion. Curiosity is one of our best features.
So, the next time someone says they're struggling, remember they may have a legal right to accommodation. More importantly, ask them what they need and what might help. You may be able to come up with a solution that will help them get the work done and feel better. With accommodation issues, employers and employees are often on the same side with the same goal. It's why the ADA is my favorite employment law.
Here is a great discussion of the ADA and mental health accommodations and some data on our increasing mental health challenges as a culture.
- Heather Bussing
Does it seem like you are dealing with more mental health issues in your workforce? If so, you are not alone. Recent mental health claim statistics show an alarming increase in chronic illnesses since the pandemic. For adults between the ages of 35 and 44, mental illness diagnoses have increased from 48% in 2019 to 58% in 2023, according to the American Psychological Association. In its most recent Strategic Enforcement Plan, the EEOC listed “workers with mental health related disabilities” as one of the categories of vulnerable workers on which they will focus their efforts to prevent harassment, retaliation and discrimination. With these types of issues on a dramatic rise, it is worth a reminder about an employer’s obligations under the ADA for mental health issues.
What Does the ADA Require?
As we know, the ADA requires employers to provide “reasonable accommodations” to a qualified employee with a disability. For a condition to meet the definition of a disability under the statute, it must be a mental impairment that substantially affects one or more major life activities. The EEOC has specifically held that conditions such as major depressive disorder, bipolar disorder and schizophrenia meet that definition. However, other problems such as PTSD, anxiety, and depression may also fit into that category.
If an employee comes to HR with a mental health issue and requests a disability, that triggers the interactive process. The ADA requires the employer to provide reasonable accommodation that would allow an employee with a disability to perform the essential functions of a job, and employers and employees must discuss options that could fit the bill. Common accommodations to address mental health issues are extended leave, scheduling changes, and additional breaks. You need to listen to the employee and the employee’s healthcare provider. Always remember that this is an interactive process, so it may take several steps. Be patient and creative.
Are There Other Strategies?
Beyond ADA obligations, employers should also consider proactively engaging with their workforce on well-being. Programs that focus on stress management, nutrition, and exercise may help reduce future claims for anxiety and depression. Encouraging open dialogue among employees and management about the health status of the workforce would also be helpful. Employees who feel supported and who have receptive supervisors may be less likely to have a sudden need for an ADA accommodation. They are also less likely to file an EEOC charge.
