Dealing with depression and other mental disabilities in the workplace can be challenging. This is especially true if an employer also has to combat negative attitudes towards the affected employees that hinder compliance with the law. California employers need to be aware of assumptions and attitudes about emotional or mental disabilities that can lead to non-compliance with legal requirements.
Here are some examples that show problematic attitudes and assumptions that could cause legal trouble:
Attitude/Assumption: We only have to consider reasonable accommodations when the injury or illness is work-related.
Reality: “The source of the disability is irrelevant. The only thing that matters is: does it meet the definition of disability?” Patricia Eyres explained in a recent CER webinar.
Attitude/Assumption: Everyone is stressed from workloads and performance expectations. Playing the “stress card” is irresponsible or lazy.
Reality: “That kind of attitude in email or verbally will come back to bite you or your organization . . . in the courtroom.” Eyres cautioned. This is tantamount to dismissing the disability.
Attitude/Assumption: An employee whose own behavior caused his depression (e.g., family problems, gambling, financial burdens, or chronic conditions) doesn’t deserve consideration for an accommodation.
Reality: “That’s an improper attitude that we don’t see people saying with physical disabilities. We see it with emotional disorders like depression.” Eyres warned. Both physical and mental disabilities need equal consideration under the law. And, as stated above, the source of the disability is irrelevant.
Attitude/Assumption: An employee with a mental disability is always a safety risk and must be kept out of any safety-sensitive job.
Reality: An employee with a mental disability is not necessarily a safety risk at all, and there are very stringent standards that must be applied before deciding to remove an employee from a safety-sensitive position. While safety of the employee (and all others) is a legitimate concern, it is only a concern for roles that have already been deemed to be safety sensitive.
Additionally, the judgment must be based on whether the condition or disease presently interferes with the ability to safely perform essential job functions—future risk cannot be considered. The analysis must be based on reasonable medical judgment that relies on the most current medical knowledge and best-available objective evidence.
Attitude/Assumption: We have no budget for accommodations or we only have budget to accommodate people who are physically disabled.
Reality: The ADA and FEHA are clear: mental illnesses are specifically covered and cannot be excluded.
Attitude/Assumption: Accommodating people with mental or emotional disabilities is too disruptive to productivity.
Reality: While it’s not always easy to find a solution in every case, employers still have an obligation to initiate the interactive process. Failure to engage in an interactive process to consider reasonable accommodations when requested by an employee is itself a FEHA violation, even if no reasonable accommodation is ultimately available.
Attitude/Assumption: Since we can’t possibly remove all stressors from the work environment, we can deny accommodation and put the employee on leave instead.
Reality: “Leave may be a last resort as a reasonable accommodation if they cannot come to work according to their healthcare provider and they need a finite and reasonable period of time to recover so they can come back to work . . . But putting the employee on leave (instead) as a first resort is just an automatic violation of the law.” Eyres warned.
The above information is excerpted from the webinar “Depression in California Workplaces: ADA/FEHA & FMLA/CFRA Implications.” To register for a future webinar, visit CER webinars.
Patricia S. Eyres, Esq., the managing partner of Eyres Law Group, LLP, focuses on helping employers manage disability discrimination issues for both workers’ comp and non-occupational disabilities. As president of Litigation Management & Training Services and CEO/Publisher of Proactive Law Press, LLC, Eyres trains managers and supervisors on how to recognize risks, prevent lawsuits, and maintain defensible documentation.