For some, stress, anxiety, depression and other mental health issues can be exasperated during the winter months. Under federal and/or state law, employers may have certain obligations to provide accommodations and other support to employees suffering from mental illness. Here we answer common questions about mental illness in the workplace.

Q: What laws protect applicants and employees with mental illnesses?

A: There are several federal and state laws that may protect workers with disabilities. For example, the federal Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against qualified applicants and employees because of a physical or mental disability. Under the law, an individual is considered to have a disability if they have: (1) an impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) is regarded as having such an impairment. Individuals with emotional or mental illness may qualify as disabled under the ADA if they meet one of these three criteria.

Several states have enacted similar laws, some of which define disability more broadly and/or apply to employers with fewer than 15 employees. Also, depending on the situation, there may be additional protections, such as those covering employees of federal and state contractors. Check applicable federal and state law to ensure compliance.

Q: What are my company's obligations under the ADA when an employee's mental illness qualifies as a disability?

A: The ADA requires that employers provide a reasonable accommodation to a qualified applicant or employee with a disability, unless doing so would cause undue hardship to an employer's business operations. An accommodation is a modification or adjustment to the work environment that will enable a qualified applicant to participate in the application process, or help an employee with a disability perform the essential functions of the job.

If an employee requests a reasonable accommodation, or puts an employer on notice of the need for a change at work due to a medical condition, such as mental illness, begin an interactive process (or dialogue) with the employee to identify an appropriate reasonable accommodation.

Q: What are some examples of reasonable accommodations for those with mental illnesses?

A: Individuals with mental illnesses may need accommodations to help them:

• Maintain stamina and concentration during the day
• Stay organized and meet deadlines
• Cope with memory issues
• Work effectively with supervisors
• Interact with co-workers
• Handle stress
• Maintain attendance
• Manage change

The Job Accommodation Network (JAN), a service of the U.S. Department of Labor, provides employers with examples of accommodations for individuals with mental disabilities. These include, but are not limited to:

• Allowing flexible work arrangements
• Providing a job coach or mentor
• Encouraging the use of stress management techniques
• Providing checklists, electronic organizers, and other aids
• Making physical changes to the workplace, such as soundproofing, or creating visual barriers
• Providing sensitivity training to coworkers and supervisors
• Allowing telephone calls during work hours to doctors and others for needed support
• Referring individuals to an employee assistance program (EAP), if applicable

Q: If I'm not sure of the validity of an employee's request, can I ask the employee to provide medical records related to their disability?

A: The U.S. Equal Employment Opportunity Commission (EEOC) has stated that medical record requests should be reserved for when the disability and accommodation are not known or obvious. Generally, employers may request medical documentation as part of the interactive process, but the scope of any request must be limited to the individual's disability, whether they can perform the essential functions of the job and whether they can work without posing a direct threat. Consider consulting legal counsel before requesting a medical examination.

Q: During a performance review meeting, an employee revealed that they have a mental illness that is affecting their work. Do I have to take this into consideration when rating their performance?

A: The employee's rating should reflect the employee's performance regardless of what role, if any, the disability may have played. However, when the employer learns of the employee's mental illness, they should begin a discussion with the employee to determine whether the disability impacts the employee's performance and if a reasonable accommodation could address the problem.

Q: During a disciplinary meeting, an employee claimed that a mental illness caused their misconduct. Can the employee still be disciplined?

A: If an employee violates a workplace rule that is job-related and consistent with business necessity, and all employees are held to the same standard, an employer may discipline them for misconduct. Examples of workplace rules that are generally considered job-related and consistent with business necessity may include rules prohibiting violence, threats of violence, stealing, or destruction of property. Consider consulting legal counsel if you have specific questions regarding your particular situation.

Q: An employee with a mental disability asked me to change their manager as an accommodation. Is this considered reasonable?

A: While the manager may need to adjust some of their management practices as a reasonable accommodation, the employer is typically not required to change the employee's manager. For example, the employee's workplace barrier could be that they have difficulty understanding the manager's verbal instructions. In this case, a reasonable accommodation could be for the supervisor to communicate with the employee in writing.

Q: An employee who has post-traumatic stress disorder asked to bring a support animal to work. Do I have to allow this as a reasonable accommodation?

A: Bringing a support animal to work could be considered a reasonable accommodation if it helps the employee with a qualified disability perform the essential functions of their job. However, if bringing the support animal would result in an undue hardship to your business, you should work with your employee to see whether there is an alternative, effective accommodation available to remove the workplace barrier. Consider consulting legal counsel if you cannot reach agreement on an effective reasonable accommodation.

Q: An employee asked for permission to smoke medical marijuana at work to accommodate his mental illness. Do I have to allow this as an accommodation?

A: The ADA expressly provides that an employer may prohibit illegal drug use in the workplace, and marijuana is considered an illegal drug under federal law. Even in states that permit medicinal and/or recreational marijuana, employers are not required to allow use in the workplace and no court has required an employer to accommodate medical marijuana use at work.

In such situations, engage in the interactive process with the employee to determine if another reasonable accommodation is available, such as offering a flexible schedule. If you are unable to reach an agreement on an effective and reasonable accommodation, consider consulting legal counsel.

Q: We just extended a conditional job offer to an applicant, contingent on the results of a drug test. They then informed us that they use medicinal marijuana at home to help with a mental illness. We don't typically hire individuals who test positive for marijuana, so what do we do now?

A: The rules differ by state. Some state laws explicitly offer employment discrimination protections for individuals who use medical marijuana outside the workplace. For example, some states expressly prohibit employers from making employment decisions solely based on a person's status as a medical marijuana user or cardholder. In these states, the employer may be required to:

• Give the individual the opportunity to produce proof that a positive drug test result was due to medicinal marijuana use; and
• Make an individualized assessment as to whether the medicinal use of marijuana would interfere with the individual's essential job duties and responsibilities.

In 2017, the Massachusetts Supreme Court became the first to rule that, in some cases, an exception to the employer's drug policy for the off-duty use of medical marijuana may be a reasonable accommodation for a disability in some situations. Other state courts have ruled or may issue rulings on the issue as this area of the law continues to evolve.

Before making any employment decisions based on an individual's use of marijuana, check your state law and work closely with legal counsel to determine your rights and responsibilities. Where applicable, employers should also consider state and federal rules that may govern the use of marijuana in safety-sensitive positions.

Conclusion:

Understand your rights and responsibilities under applicable nondiscrimination laws and train supervisors on how to handle requests for reasonable accommodations.