In a BLR webinar titled “Depression and Other Mental Illness Under New ADA: Accommodation Practices for HR,” Susan G. Fentin and Ronald Schouten tackled the sensitive issue of handling depression and other mental illnesses that employees may face. This issue can be complex because employees are often reluctant to ask for help, the symptoms of mental illnesses can be harder to identify, and the accommodations can be more difficult. However, since many mental illnesses qualify as disabilities, employers have an obligation under the ADA to accommodate whenever possible.
After the webinar, Fentin and Schouten answered questions from participants. Here are some questions you may be curious about as well:
Q. What do you do in terms of creating an accommodation while you are awaiting documentation of an employee’s illness? Do you wait until the medical note is returned, or do you try to accommodate with some method in the meantime?
A. I generally advise my clients to try to make an accommodation that works for both the employer and employee, even if it is only on a temporary basis. The communication that you have with the employee around that accommodation would explain what was asked for, what information was provided, and the status of the situation. It would state that the accommodation is temporary, pending the medical documentation. Record all essential pieces of communication with the employee for future reference.
Q. If an employee informs you in writing, or if a physician provides a medical inquiry form that indicates the employee does not require any accommodation, do we need to provide any further notice to the employee?
A. If I understand correctly, you have a situation where you believe the employee may need an accommodation, or the employee has asked for an accommodation, but the medical documentation doesn’t support the need for the accommodation.
If that’s the case, it’s prudent to notify the employee in writing that the medical documentation doesn’t support the need for the accommodation and that you expect them to continue to perform the essential functions of their job in the manner in which you have always expected. It’s advisable to let them know the results officially.
Q. Do these rules (regarding the ADA) apply to part-time or seasonal employees?
A. Yes. The ADA applies on day one. And it applies to all of your employees – there are no exceptions. In fact, one little-known piece of the ADA is that it also will apply to employees who are technically not your employees but instead working for you through a temporary placement agency. This is because you are the employer who has the control over the terms and conditions of their workplace.
So, even if you are not the employer of record, if they work for you in your workplace and need an accommodation, you’re going to be required to provide it. So, it applies to temporary, part-time, seasonal – everybody. From day one.
Q. In the situation of ADA, can it be intermittent like the FMLA? In other words, can it be used an hour a day for 6 months (for example) or does it have to be full days (i.e. time blocks)?
A. In this case, what we’re talking about is a leave of absence for an employee who suffers from any sort of disability (not necessarily a mental disability, but any disability that necessitates a change in schedule). If they were eligible for FMLA leave, they would be allowed to take intermittent leave – either as reduced schedule or intermittent leave taken as the need arises.
Under the ADA, a reasonable accommodation could include a block leave of absence, just as with the FMLA, for a period of days or weeks. It could also include reduced hours of work or changed work days. But it does not include irregular and erratic attendance. The ADA does not generally require that as a reasonable accommodation.
However, tread very cautiously. Some employees assume that a disability gives them the right to come and go as needed. Check with employment counsel before deciding to terminate someone who is unable to provide regular, reliable attendance.
For more information on handling employees with mental illness and how that relates to the ADA, order the webinar recording of “Depression and Other Mental Illness Under New ADA: Accommodation Practices for HR.” To register for a future webinar, visit http://catalog.blr.com/audio.
Attorney Susan G. Fentin is a partner in the labor and employment firm of Skoler, Abbot & Presser, P.C. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.
Dr. Ronald Schouten is the director of the Law and Psychiatry Service at Massachusetts General Hospital (www.massgeneral.org) and an associate professor of psychiatry at Harvard Medical School (hms.harvard.edu). His clinical and consultation practices are focused on executives and professionals confronted with career issues, work-life balance problems, and mood and anxiety disorders.