By now, most employers with at least 15 employees have a general familiarity with the Americans with Disabilities Act (ADA). That said, what does or does not—constitute a “disability” under the ADA may not be as clear. This is especially true when it comes to disabilities that are mental, rather than physical, in nature. One area of particular risk for employers concerns disabilities pertaining to anxiety and depression.
When an employee or applicant suffers from a disability (meaning a physical or mental impairment that substantially limits one or more major life activities), employers have primarily two obligations. First, the disability must not be the basis of any employment actions, such as hiring, firing, and promotional decisions.
Second, if an employer is on notice of a disability, it may be obligated to engage in an interactive dialogue to determine what, if any, reasonable accommodations might be needed for the employee (or applicant) to be able to perform the job’s essential functions.
Recognizing when the interactive process obligation arises, however, can be especially tricky when there are mental disabilities at play. To determine an employer’s obligations in this area, the following guiding principles are instructive.
Key Points
First, courts have expressly recognized that anxiety or depression can constitute a disability. The fact that it can be an official medical diagnosis—not to mention its effect in limiting one or more major life activities, including the ability to work—means it can be covered by the ADA.
Second, when an employee discloses the existence of an anxiety or depression-based disability, you are under a duty to engage (and often initiate) the interactive process. You shouldn’t wait for her to request workplace assistance. Rather, as soon as she discloses the existence of an anxiety or depression-based disability, you should initiate the interactive ADA dialogue.
Third, if you suspect an anxiety or depression-based disability exists, you may need to carefully inquire further. Although not every statement about stress and sadness signals that an anxiety or depression-based disability exists, you should resist the urge to dismiss such statements without further analysis. Instead, you should carefully analyze whether there are other signals that a disability may be present.
Here, examples may be instructive. If an employee makes a single comment about being “stressed out,” this common workplace jargon often will not trigger your obligation to engage in the interactive ADA process simply because there’s no underlying disability. After all, if the employee is simply feeling the pressure of an impending deadline or otherwise having a bad day at the office, there’s often no disability at play.
If an employee’s comments about being “stressed out” are frequent in nature, however, or are accompanied by other language signaling a more pervasive condition, an underlying disability—which imposes affirmative obligations on you—may exist.
By way of example only, if she says she is “stressed” about an upcoming public speaking obligation and has experienced physical symptoms (e.g., hives, shortness of breath) as a result, or discloses that this kind of “stress” has been a lifelong ailment, you may need to inquire whether she requires a reasonable accommodation, rather than dismissing the concern out of hand.
In making your inquiries, however, you shouldn’t go it alone. Since the ADA also protects employees from being “regarded as” disabled, employers that are too quick to declare an individual disabled may be creating liability that doesn’t otherwise exist. For that reason, when mental disabilities might be at play, you should consult with experienced employment counsel to navigate the complex area of disability law.
Fourth, when you are faced with a potential need to provide a reasonable accommodation for an employee’s anxiety or depression, you should follow the same ADA processes you would use for physical disabilities. If additional medical information is needed to assess whether a proposed accommodation is reasonable, you may need to request it (although you should work carefully with counsel in framing the request because you don’t enjoy free reign to delve into the specifics of an employee’s medical information).
Ultimately, once you have sufficient information to assess her workplace needs, you both may need to compromise to arrive at an accommodation that complies with the ADA and allows her to perform her essential job functions.
Finally, remember that you aren’t required to grant all accommodation requests—especially if they are unreasonable. Under the ADA, you don’t need to waive an essential job function or accept an accommodation that would otherwise create an undue hardship.
For instance, regular attendance can—under certain circumstances—be deemed an essential job function. Accordingly, if the employee asks to work from home on a regular basis because of an alleged disability, this may be considered an unreasonable request depending on the circumstances.
Again, consult with experienced employment counsel, who can assess your risk factor in denying a particular accommodation.
Impact on Businesses
Businesses that ignore buzzwords that may signal a mental disability may find themselves facing intentional discrimination and/or a failure-to-accommodate claims. Each claim is costly not only in the potential remedies to be awarded but also in the attorneys’ fees businesses will incur to defend against them. By consulting with experienced counsel when a potential mental disability first surfaces, you can often minimize the costly results of noncompliance.
Shannon S. Pierce, is the director of employment and labor at Fennemore Craig, P.C. and can be reached at spierce@fclaw.com. Holly E. Walker is an attorney at Fennemore Craig, P.C. and can be reached at hwalker@fclaw.com.