While California’s COVID-19 State of Emergency is set to end on February 28, 2023, and California’s Supplemental COVID Supplemental Sick Pay has already sunsetted, the effects of the pandemic continue to impact California employers. Most recently, there has been a major uptick in employee requests for accommodation for mental issues such as depression, stress, and anxiety related to pandemic issues.
Whether it is depression from being isolated while working from home, stress from being short-staffed during COVID-related leaves, or anxiety from facing an employer mandate to return to in-office work, when a California employee raises a mental health concern, there are many issues the employer should keep in mind.
Here are some quick tips for dealing with mental health accommodations:
- Avoid Stereotypes. As society is becoming more open about mental health, stereotypes about persons dealing with mental health issues are becoming less prevalent. However, it is still important to remind everyone that mental health disabilities are no different under the law than physical disabilities. Comments that an employee is “faking it,” is “soft” for not being able to cope, etc. are never appropriate. Employers have a duty to prevent discrimination and harassment based on disability, including mental disability, and making sure that employees avoid stereotypes and improper comments about mental health issues is the first line of defense in preventing such claims.
- Do Not Ask For A Diagnosis. While an employee may volunteer his or her condition, the employer and its representatives should never ask for a diagnosis or any specifics about the condition that do not relate to the need for accommodation/leave, including on any medical certification forms used by the employer.
- Asking for Documentation. When an employee’s disability or need for accommodation is not apparent or known to the employer, the employer may request a certification from a healthcare provider verifying that an accommodation is needed. The employer may ask for verification that the employee has a disability (but not the diagnosis), which in California includes a mental or psychological disorder or condition that limits a major life activity (including working), or any other mental or psychological disorder or condition that requires special education or related services. The employer may ask for a description of how the employee’s limitations impair the ability to perform the essential duties of the job, whether these limitations are temporary or permanent, and if temporary, when they are expected to end. [Note: If the requested accommodation is minor, the EEOC recommends making the accommodation without requiring documentation.]
- Engage In The Interactive Process. Once an employer knows of the need for an accommodation, the employer has a duty to engage in the interactive process to determine whether a reasonable accommodation can be provided. The employer should have someone experienced in this process meet with the employee to determine, with the employee’s assistance, the job-related limitations and how they could be mitigated with a reasonable accommodation, identify possible accommodations, and assess the effectiveness of those possible accommodations. Employers should document the interactive process, even if it is simply a meeting with the employee to inform the employee that the accommodation requested will be provided.
- Evaluating Reasonable Accommodations. An employer’s duty to provide a reasonable accommodation for a mental disability is the same as for a physical disability – an accommodation is required if it permits the employee to perform the essential job duties of his/her job (or an alternative open position for which the employee is qualified) and does not create an undue burden to the employer. Thus, the employer may be required to reassign non-essential job duties, change an employee’s work schedule (such as to accommodate mental health treatment), allow an employee to work from home, etc. One difficult issue is whether an employee with a mental disability can demand a different supervisor as an accommodation. Because the law is not well settled on that issue, experienced legal counsel should be consulted if the employer is not willing to do so. Other potential accommodations may be considered, such as having the supervisor provide written instructions/guidance to the employee instead of verbal interaction.
- Reassignment Or Leave Can Be Reasonable Accommodations. If the employee cannot be reasonably accommodated in his/her position, the employer should consider whether the employee can be accommodated in any other open position, including open positions in other locations. If so, the employer should engage in the interactive process with the employee. A leave of absence may be a reasonable accommodation if there are no other reasonable accommodations that would permit the employee to continue working. Employers are not required to provide indefinite leave to accommodate disabilities. However, the law on what is considered “indefinite” leave can be very gray, so employers should consult with experienced legal counsel when an employee seeks successive leave or leave for an extended period.
- Evaluating Undue Burden. As with accommodations for physical disabilities, an accommodation for a mental disability need not be provided if the accommodation would create an undue hardship to the employer. The same factors apply, as the employer must consider the nature and cost of the requested accommodation, the employer’s ability to pay for the accommodation, the type of operations conducted at the facility, the impact on the operations of the facility, the number of other employees and the relationship of the accommodated employee’s duties to the other employees, the number/type/location of the employer’s facilities, and the administrative and financial relationship of the facilities to one another.
- Consider Interaction With Other Laws. If the employee is taking time off or working less hours as a part of the accommodation, the employer should consider whether the time off should be designated as FMLA/CFRA job-protected leave. If the employee indicates that the mental disability is work-related, workers’ compensation reporting procedures should be followed. If accommodation will impact the employee’s employment benefits or pay, those issues should be discussed as a part of the interactive process. If working from home is a part of the accommodation, the employer should ensure that it complies with laws requiring reimbursement of work-related expenses and time reporting requirements for non-exempt employees.
- Dealing With Workplace Issues Caused By An Accommodation. If co-workers question why an employee is being provided with something they are not – such as an employee being permitted to work from home when the employer is mandating a return to the office – the employer should not reveal that the employee has a disability or doctor’s note permitting them to do so. The employer should respond that it is a confidential personnel issue that they are not authorized to discuss with the employee. If supervisors or managers are concerned that an employee working from home is not doing his/her job, the employer should be careful to ensure that such employee is not being asked to provide more or different documentation about work and is being held to the same standards as those working in the office (unless adjusted as a part of the accommodation). If it appears that the accommodation is not working for the employee or the employer, the employer should reinitiate the interactive process to discuss modifications or other potential accommodations.
- Follow Up. Human Resources should occasionally follow up with the disabled employee to ensure that any accommodations are being followed and to determine whether additional steps are needed.
- Train Supervisors And Managers. Supervisors and managers should be trained about how to handle potential mental health disabilities so that they will know when to contact Human Resources, what to say when dealing with mental health issues, and most importantly, what not to say.
