Accommodating mental health disabilities in the REALTOR® association workplace.
Copyright: U.S. Air Force photo by Airman 1st Class Jazmin Smith
By Carole Kaptur
A staff member asks to bring an emotional support animal to work because it helps alleviate their stress. Do you have to consider this? It depends.
When most of us think about the Americans with Disabilities Act, we think of physical disabilities and accessibility. We have complied with the requirements of the act relating to physical disabilities with modified entrances and exits to our offices to allow easier access for people who use wheelchairs. We have updated our job descriptions to include mobility and sensory functions essential to a job. However, many of us don’t realize that the ADA amendment that took effect in 2009 includes mental health.
The challenge this presents for employers is that psychological issues can be difficult to identify. Examples of diagnoses include depression, social anxiety, generalized anxiety, obsessive compulsive disorder, post-traumatic stress, binge eating, antisocial personality disorder, and general personality disorder. Because of mental health stigma, some employers may be skeptical of a diagnosis. To make matters more complex, the request for mental health accommodation may have been brought forward by an underperforming employee.
According to the Substance Abuse and Mental Health Services Administration, it is estimated that more than 18 percent of American adults suffer from mental health issues. And mental health issues are estimated to be increasing.
The ADA requires reasonable accommodation for mental health disorders accompanied by what is called an “interactive process,” which includes several steps such as considering an employee’s requests, investigating options, and evaluating the effect on the workplace. For example, consider a diagnosis of anxiety. An employee might request coming in late or leaving early or working from home to avoid the stress of the commute or working fewer hours to reduce stress. Other options might include restructuring the job so that the employee handles only one task at a time; for example, a receptionist who is responsible for a large volume of incoming calls, making copies, ordering supplies, and handling mail might propose the following daily morning routine with a similar structure for the afternoon:
- open mail from 9 – 9:30 a.m. only
- answer calls from 9:30 – 10:30 a.m. only
- make copies from 10:30 – 11 a.m. only
- order supplies from 11:30 – noon only
The question is whether this is reasonable in light of the essential functions of the job and whether the job description says anything about multitasking.
What about an employee suffering from depression? Accommodation requests might include a flexible schedule, job restructuring, supervisory methods (meeting with the employee more or less frequently, encouraging the employee to let the supervisor know when something is unclear, providing oral and written instructions), additional time to complete work, job coaches, periodic rest breaks, a support animal (such as a dog or cat that provides therapeutic benefit, such as alleviating or mitigating some symptoms of the disability) or support person (a dedicated person to help keep them focused, assist with minor daily tasks and help them operate in social environments in which they may not feel comfortable, such as meetings).
When it comes to accommodating an employee’s mental health condition, the possibilities are endless—and so, too, are the possibilities for abuse. Even if these accommodations sound reasonable, consider that you are prohibited from discussing any of this with your other employees because of privacy expectations. Your remaining staff may not understand why this one employee has an emotional support animal or comes in late and leaves early and why they can’t do the same.
Although emotional support animals can be beneficial to employees suffering from mental disabilities, employers are not required to allow ESAs in the workplace. These animals are not the same as service dogs and therefore do not garner the same rights under the Americans with Disabilities Act.
What does this mean for association management?
Two things. You will want to ensure that you understand the requirements of the ADA and review your job descriptions. To review job descriptions consider the knowledge, skills, and abilities needed to do the job, along with any physical characteristics, credentials, experience, and environmental factors required. These factors include things such as the ability to multitask, manage multiple priorities, and regulate emotions.
Accommodation requests could show up with a newly hired employee who was reluctant to reveal a disability during the interview process. Current employees can request an accommodation at any time it becomes a known need. Once an accommodation is requested, employers are required to go through the interactive process. This means hearing the employee out, usually by meeting in person, and then following up in writing to document what was discussed and the employer’s justifications for their action.
Document the facts of the meeting in an email with a delivery and read receipt. It’s a good idea to close the email with a statement similar to the following: “I believe this accurately reflects our discussion regarding your request for accommodation. If there is anything in this email you think does not accuracy reflect our discussion, please let me know by tomorrow at close of business, or I will assume you agree.”
The employer must decide whether the requests are reasonable in terms of monetary and staff resources, and consider other options that do not have undue burden or hardship. When it comes to animals, it’s important to note the employer is obligated to thoroughly investigate how the animal may impact the workplace. The employer should not assume or guess those impacts. The employer must be able to justify decisions made with the understanding that these decisions could ultimately be reviewed in a courtroom by a judge or jury. Although this can be daunting, and the ADA makes significant requirements for employers, the employee must be able to perform the essential duties of the position with or without accommodation.
Employers can request sufficient documentation when the disability or requested accommodation is not readily known or observable, as is typically the case with a mental health issue, but medical documentation is not required by the ADA. Another option is to choose a doctor to conduct an independent medical examination. In this case, the employer pays for the independent evaluation. An independent medical examination may provide employers with different options for reasonable accommodations—for example, taking frequent rest breaks rather than working from home.
Finally, employers should review their job descriptions to ensure that they reflect the range of cognitive functions required. Otherwise, the employer is leaving a medical professional with the opportunity to make subjective interpretations of the position requirements. Cognitive tasks include: analyzing, counting, concentrating or focusing with frequent interruptions, summarizing; interpreting written data; synthesizing information from multiple sources; writing summaries or abstracts; interpreting written or verbal instructions; summarizing or responding verbally; and recognizing social or professional behavioral cues.
A job description that includes cognitive abilities and executive functions may include language such as the ability to perform a variety of duties, often changing from one task to another, or the ability to interact appropriately with colleagues for different purposes in different contexts. Such a clearly written job description helps a medical provider determine accommodation strategies that are reasonable regarding the essential functions of the position. Imagine how difficult accommodation strategies might be if cognitive abilities were not included in the job description.
Accommodating Mental Health Conditions
Depression and anxiety disorders cost the global economy $1 trillion each year in lost productivity, according to a World Health Organization–led study. Flexible hours, job redesign, addressing negative workplace dynamics, and supportive and confidential communication with management can help people with mental disorders continue to or return to work.
When it comes to accommodating an employee’s mental health condition, the possibilities are endless—and so, too, are the possibilities for abuse.
Reprinted with permission from REALTOR® AE magazine, a publication of the National Association of REALTORS®