David Harmon: Hi, I’m David Harmon.
Mariya Gonor: And I’m Mariya Gonor.
David Harmon: And we are the employment strategists.
Mariya Gonor: Since May is a mental health awareness month, we’re focusing today on mental health in the workplace.
David Harmon: What’s improved, what still needs work, and what this actually means for employees and employers. Let’s start on a positive note because there has been progress here.
Mariya Gonor: Definitely. Compared to even five to ten years ago, workplaces are talking a lot more about mental health. You’re seeing more companies offer things like employee assistance programs, mental health days, expanded benefits. And even at the national level, this has become a priority. The surgeon general actually issued a framework that’s focused on workplace well-being.
David Harmon: Which is a big deal because it recognizes that workplaces aren’t just about productivity. . They’re environments that affect mental health.
Mariya Gonor: David, now in our practice, have you seen the shift from employers caring more about their employees’ mental well-being?
David Harmon: Oh, absolutely. There’s far more awareness, not only of the actual mental health issues, but also procedures surrounding how companies should address them. At the same time, not every company is at the same place, Mariya.
Mariya Gonor: No, you’re right. Some organizations are really investing into employee well-being, while others…
David Harmon: others are still testing the waters.
Mariya Gonor: I guess their idea of well-being is, “Hey, hope you’re doing well” email or a pizza party.
David Harmon: Yeah, there’s no question that pizza’s great, but it’s not quite cutting it.
Mariya Gonor: Again, you need to have, as an employer, a comprehensive mental health strategy.
David Harmon: Here’s why this matters. About 80% of workers say they look to their workplace for mental health support. That’s a very high number.
Mariya Gonor: Absolutely. It means whether employers intend to or not, they’re becoming part of the mental health conversation.
David Harmon: So the expectation is already there, even if the infrastructure isn’t.
Mariya Gonor: Another important thing that needs to be considered is that mental health could be considered a disability under the Americans with Disabilities Act or a state equivalent, so that means legal risk.
David Harmon: Oh, there’s, there’s a legal framework that any mental health awareness has to contemplate. You’re not operating in a vacuum. There’s a legal framework that must be complied with.
Mariya Gonor: So let’s discuss this legal framework.
David Harmon: Let’s talk about the legal side because this is where things get more structured. It brings structure to the overall issue.
Mariya Gonor: As I just noted, under the Americans with Disabilities Act, mental health conditions can qualify as disabilities.
David Harmon: Which triggers obligations on the company, like reasonable accommodations and the interactive process.
Mariya Gonor: And we’ve seen how this plays out in real cases. For instance, there was a case out of the Fourth Circuit that specifically addressed a mental health request, which by the way, I think is kind of unexpected.
David Harmon: Absolutely, where an employee with social anxiety asked for a pretty straightforward accommodation.
Mariya Gonor: She specifically wanted to stay away from a highly public-facing role.
David Harmon: Instead, the employer didn’t really engage in that process and terminated her.
Mariya Gonor: Right. The employer simply decided that not wanting to be client-facing was not a reasonable accommodation or that her anxiety even rose to the idea that it needs to be protected under the ADA, but the court disagreed.
David Harmon: The court disagreed. There was a misinterpretation of the ADA, and also probably a misunderstanding of the actual disability.
Mariya Gonor: And the request, right?
David Harmon: And the request.
Mariya Gonor: Yeah, the court specifically said that there were issues on discrimination, retaliation, and failure to accommodate. So let’s make this practical. Employee says, “I’m struggling with anxiety in a client-facing role. Can I do something more behind the scenes?” What should the employer do, David?
David Harmon: So that’s a request for the interactive process, and there should be procedures, steps that are taken by the company, by the employer, to ascertain what the actual disability is and what the accommodation request is all about, and whether that can be implemented.
Mariya Gonor: It’s a dialogue, right? The employer has to come in and ask some specific questions from the employee to ascertain what could be done.
David Harmon: It’s an exchange, and it, and it has to take place in order for the company to be protected under the ADA and for the employee to be protected under the ADA. There’s a mutual benefit to doing so.
Mariya Gonor: I think you just used a very important word. It’s an exchange. It’s a conversation between both of the parties. The employer has to ask the questions or partake in a conversation, and so does the employee.
David Harmon: Right. It’s a required exchange. It, it, it follows… It’s analogous to procedures that are required to be followed in other employment-related issues such as harassment. There are protocols that have to be followed, investigations, determinations. Very similar in the disability segment.
Mariya Gonor: Can the employer keep everybody in the loop about this request? Like, just inform everybody in the company that, “Hey, we have an employee here who does- No, that’s, that- “… who’s, like, very anxious.”
David Harmon: Again, that’s a, would be a breach of HIPAA. And it would be very discriminatory towards that particular employee. The reason the employee is asking for an accommodation is not to avoid work, but to continue to work for the company, but under a different setting. . And then to single that person out because there’s a disability is now really, in a way retaliating and discriminating against that employee.
Mariya Gonor: Oh, yeah, I think that’s a very fair point, to embarrass them in front of everybody like this, and also employees like to keep their medical conditions private generally.
David Harmon: Well, it’s also, I think, a requirement under, under HIPAA and other laws that protect the disclosure of confidential information.
Mariya Gonor: And then what about the actual accommodation request itself? What if, as an employer, you look at this and you go, ‘Well, we hired this person to do X, Y, and Z, and now this person is asking not to do X and Y.’
David Harmon: Well, that becomes, that’s where the struggle comes in. So after this exchange, the determination is whether or not the accommodation can be made, but if it imposes an undue hardship on the employer and the employer is unable to obtain the services of that employee within that specific job description, then other alternatives have to be sought out, maybe a reassignment to another area, or possible termination.
Mariya Gonor: Yeah, and I think the employers also have to be mindful of what the essential functions of the job is, right? Is this what you hired the employee to do? Is this the core responsibility, or is this something that’s sort of like a side responsibility that somebody else can take on while you’re providing that accommodation to an employee?
David Harmon: And so it may require a bit of a restructuring within a particular department.
Mariya Gonor: And I think one of the hardest thing about a mental health accommodation is that these are disabilities that may not be obviously seen, and it’s just so very hard to structure an accommodation that may fit the goals of the employee and the employer.
David Harmon: Well, even though I discussed HIPAA requirements, it’s very important for, if there are m- these mental health issues, that the employee substantiate with medical, supporting medical data from physicians, from those treating professionals to substantiate the fact that there is this issue.
Mariya Gonor: With the mental health accommodation requests, it’s just so much harder for employees to show them and for the employers to evaluate them because they’re not apparent. They’re not as apparent as a physical accommodation that may be requested.
David Harmon: Right. So someone’s in a wheelchair, someone’s on crutches, someone is having a surgery or some other condition, that may be easier for them to discuss. They also have to prove… that person has to prove that and show that’s for real. But in a mental health situation, since we are talking about mental health, that’s a probably a more difficult situation for the employee, but the employee does have to substantiate it with medical records and support because it’s something that has to be articulated through the interactive process.
Mariya Gonor: And I guess there’s a little bit of a level of an education going on from the employee to the employer to explain what the disability is and why the accommodation they’re asking for actually helps with that disability.
David Harmon: That may require more involvement of the medical professional to help substantiate that and explain it. So that’s part of the interactive process. And once again, it requires the company to figure out how best to address that mental health disability in a job accommodation.
Mariya Gonor: So one of the things that we’re seeing a lot more of right now is the accommodation for a therapy dog or a therapy animal, and also work from home accommodation because of a mental stress conditions. So what do you think employers should do when they receive something like that?
David Harmon: Well, it’s a matter of whether or not they’re gonna have that policy across the board or not. If they start it with one, they’re gonna have to start it with two, three, and four. If they don’t do that at all, and that’s not, that, that’s not something that they’re able to accommodate, that, that imposes an undue hardship and that person may, as I said before, be reassigned or some restructuring or may have to be let go.
Mariya Gonor: And it’s important to remember that coming out of COVID, where we all worked from home for a year or two years, right, most employees showed… Well, most office workers showed that we can successfully perform our jobs from home. So it’s important for the employers to document why an in-office presence is important if they’re going to deny the accommodation.
David Harmon: Right. Well, there are certain jobs that are, cannot be done, performed remotely. Mm-hmm. There are jobs that require the actual presence of the employee. There are other jobs that can be handled remotely. So it’s a matter of what works best for the workplace, and again, it’s the undue hardship test that I think is very important in this situation.
Mariya Gonor: Right, and in this case that we just discussed a couple of minutes ago, the employee’s role initially that she was hired for was not necessarily consistently client-facing, but then over time it evolved, right? So for that reason, the court was not satisfied with the employer’s outright rejection of saying, “Well, you’re a clerk. Clerks are required to talk to people.”
David Harmon: Right, well, I think it’s a matter of the contribution that the person has made, that the company can look at and evaluate the employee’s performance and to do their best, especially if this is a person who is, has brought value to the company to find a way to accommodate that. But it may not always work. But here the court found that the actions of the company were violative of the ADA.
Mariya Gonor: And in a practical sense, again, what are the consequences for a company mishandling a request for accommodation?
David Harmon: Well, if a client comes to us and says that they requested an accommodation, they asked for the interactive process, they went through the interactive process, or they didn’t, and the company terminated them, that’s liability. Then we’re gonna be making a demand for damages for violation of the ADA. Yeah. If we are representing the employee.
Mariya Gonor: Absolutely. And then the damages for that, right, is not just the economic, but also the emotional distress that is usually magnified when you’re dealing with an employee who already had a mental health issue in the first place, and not to mention attorney’s fees as always.
David Harmon: Sure. I mean, that’s an exacerbation of the situation on multiple levels.
Mariya Gonor: And under the ADA and the state equivalent, unlike with the other harassment and discrimination laws- Yeah … right, with intent matters, here just even failing to engage in the process as a result of simple negligence could impose liability on the employer.
David Harmon: I think there’s a wider range of potential damage to a, an employer who doesn’t comply. And now this is happening more and more, more requests coming in for mental health accommodations, and that’s why we’re talking about it in Mental Health Awareness Month. So, companies really have to get their act together to know and have experienced people or trained people to know how to handle this when these requests come in. And at the same time, it’s very important for the employee to really be prepared with the necessary information, data that they have about their own condition and why, and be able to articulate why the accommodation is necessary for the continuing of performance of that job.
Mariya Gonor: I mean, that’s a perfect summary, really. That’s, like, eloquently said. That’s exactly what employees need to do.
David Harmon: That’s exactly it. So this is where everything comes together, awareness, expectations, and legal obligations, as we’ve, we’ve just been talking about.
Mariya Gonor: Exactly. The goal isn’t legal perfection, it’s engagement.
David Harmon: Right. Employers don’t need to have all the answers immediately, but they do need to respond thoughtfully and carefully.
Mariya Gonor: Okay, and now transitioning into the strategies. Let’s start with our employers. What are our employer strategies?
David Harmon: Okay, there are a few. And we’ve probably touched on these throughout the episode, but let’s bring it down to the strategies. First, the issue has to be recognized. If performance changes, don’t just react, ask questions.
Mariya Gonor: Second, you have to engage in the interactive process. It is a conversation
David Harmon: You don’t need a perfect solution right away, but you do need that conversation.
Mariya Gonor: Third, you wanna make sure that you train managers. A lot of, or your HR individuals. A lot of risk comes from frontline managers or HR people not knowing how to respond to a request or a request for help.
David Harmon: And fourth, focus on flexibility where possible. That’s one of the most requested and effective accommodations, and that would come in very handy if there’s an action brought to show that there was flexibility on the part of the employer.
Mariya Gonor: Yeah, that the employer made good faith effort to accommodate.
David Harmon: Good faith. Key.
Mariya Gonor: And what about the strategies for the employees? So for employees.
David Harmon: First know your rights. Mental health can be protected under the ADA.
Mariya Gonor: Mental health can be a disability. Don’t be afraid to ask for what you need. Second, communicate when you can. You don’t have to overshare, you don’t have to share all the detail, but you do need to put your employer on notice of what you need and what kind of support you’re looking for.
David Harmon: Right. The nature of the accommodation. Third, be specific about what would help. That’s the accommodation. And finally, as always, document what you request. It helps to protect you and your rights to make things very, very clear. Not only document to go in to make the request, but maintain a paper trail of, in case the company takes an adverse action against you and you wanna pursue damages, you have a paper trail as to what actions you took and what file material and supporting evidence you’ve presented in the interactive process, if you even get there, which hopefully you would.
Mariya Gonor: To end on a positive note, it is very, very clear that the workplace and the case law has come a long way in mental health.
That’s for sure. But it’s still evolving.
Mariya Gonor: And both employers and employees play a role in getting it right.
David Harmon: So exactly, awareness is the first step. What happens next is what really matters.
Mariya Gonor: And as always, while we hope you found our time together entertaining and educational, please remember that this is not legal advice and should not be taken as such.
David Harmon: If you wish to continue the discussion, you can contact us at theemploymentstrategists@norris-law.com.