One in five adults in the United States will experience a mental illness each year.[1] Federal and state laws require employers to provide reasonable accommodations to qualified employees who have a disability. These laws also prohibit discrimination and harassment based on disability. Though historically thought of as only physical, disabilities can also involve unseen conditions, such as mental health or psychiatric conditions or illnesses. A psychiatric or mental health condition is a mental health problem that “may recur from time to time . . . [and] may interfere significantly with a person’s ability to work, learn, think, care for oneself, or interact with others.”[2] The Equal Employment Opportunity Commission’s (“EEOC”) current guidance provides that mental health conditions need not be severe or permanent to warrant a reasonable accommodation.[3]
If an employee has a disability which inhibits performance of their essential job functions, but the employee can perform their essential job functions with an accommodation, then an employer must approve that accommodation so long as it is reasonable to do so.
Federal law protections
The Americans with Disabilities Act of 1990 (“ADA”) prohibits private sector employers with 15 or more employees from discriminating, retaliating against, or harassing employees with disabilities, including prohibiting employers from discriminating against job applicants. The ADA also requires employers to make reasonable accommodations for employees unless doing so would impose an undue hardship on the employer.
The Rehabilitation Act of 1973 mirrors the ADA and prohibits federal agencies, federal government contractors, and entities receiving federal funding from discriminating against employees with disabilities, including job applicants. Federal government employees can make requests for accommodation under the Rehabilitation Act.
The Family Medical Leave Act of 1993 (“FMLA”) requires employers with 50 or more employees to allow employees to use up to 12 weeks of unpaid leave for family and medical reasons such as to treat an illness or serious health condition. A mental condition or illness can qualify as a serious health condition under the FMLA. An employee can also request FMLA leave as a reasonable accommodation. Employees become eligible for FMLA leave once they have worked a minimum of 12 months, for at least 1,250 hours, for the employer.
State law protections
Beyond the ADA and FMLA at the federal level, states can expand protections related to medical conditions, accommodations, and leave. State laws can allow for additional paid or unpaid “sick” days, FMLA leave, paternity leave, and more for eligible employees in the state. To determine how state laws may impact you, we recommend speaking to an attorney.
Common accommodations for mental or psychiatric conditions
An employee seeking a reasonable accommodation should identify the accommodation they may need and clearly explain to the employer how the accommodation will help them successfully perform the essential functions of their job. Determining what accommodation is reasonable for the employer to provide should be an interactive process with the employee, their doctor, and their employer.
Below are some examples of accommodations that have been permitted in different workplaces for employees with mental health conditions: [4]
- Working from home
- Adjustments in work start or end times or reduced hours
- More frequent breaks
- Beverages or food at workstations
- Adjustment of lighting or placement near a window
- Private offices or private space enclosures
- Technology to record meetings
- Modification of job duties
- Additional time to complete tasks or responsibilities
- Additional or modified training
- Adjustment of communication styles (e.g. written instructions rather than verbal instructions)
- Reassignment to a vacant position the employee can perform
Unless the need for the accommodation is obvious, the employee will need to disclose to their employer the general type of medical condition, describe how their disability affects their ability to perform the essential functions of the job, and explain that accommodations will enable them to perform the essential functions of the job. The employer may then need to request additional information from the employee’s health care provider about the nature of the condition, functional limitations, and any suggested accommodations.
Under the ADA and Rehabilitation Act, an employer is prohibited from firing, refusing to hire, or refusing to promote an employee because they have requested a reasonable accommodation or because they need a reasonable accommodation.
If you have questions about this matter or another employment-related issue, please request a consultation with one of our experienced attorneys.
[1] Center for Disease Control and Prevention, About Mental Health (June 28, 2021), https://www.cdc.gov/mentalhealth/learn/index.htm.
[2] Boston University Center for Psychiatric Rehabilitation, What are Reasonable Accommodations?, https://cpr.bu.edu/resources-and-information/reasonable-accommodations/what-are-reasonable-accommodations/.
[3] U.S. EEOC Guidance, Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights, OLD Control No. EEOC-NVTA-2016-11 (Dec. 12, 2016), https://www.eeoc.gov/laws/guidance/depression-ptsd-other-mental-health-conditions-workplace-your-legal-rights.
[4] U.S. Dep’t of Labor, Office of Disability Employment Policy, Accommodations for Employees with Mental Health Conditions, https://www.dol.gov/agencies/odep/program-areas/mental-health/maximizing-productivity-accommodations-for-employees-with-psychiatric-disabilities; see also, Boston University Center for Psychiatric Rehabilitation, What are Reasonable Accommodations?, https://cpr.bu.edu/resources-and-information/reasonable-accommodations/what-are-reasonable-accommodations/; see also, U.S. EEOC Guidance, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, OLC Control No. EEOC-NVTA-2013-2 (May 1, 2013), https://www.eeoc.gov/laws/guidance/mental-health-providers-role-clients-request-reasonable-accommodation-work.
