ADA Compliance with Compassion, Part 2: Mental Health & the Interactive Accommodations Process
Welcome back to the 2nd article in our series on mental health, employment, and the ADA. Our last article reviewed the basic framework of the ADA and its core terminology. In this article, we’re going to tackle the interactive accommodations process. What does the ADA mean by an “interactive” accommodations process? What kinds of accommodations might an employer be required to make? How do you accommodate an invisible illness that you may not fully understand? How do you know that your employee has a legitimate disability- couldn’t they be lying?
Understanding mental health disorders
Before we delve into the ADA, let’s pause for a second to reflect- how did that last question make you feel? Does this sound like something you would say? Something your boss would say? For many employees suffering with a mental health disorder or chronic illness, this question is a prime example of why so many employees don’t seek the accommodations they need to overcome the barriers posed by their disability. We often discount what we can’t see or feel ourselves. We have a pretty long history of sweeping mental health under the rug and pretending that invisible illnesses aren’t real. (Think about how far we’ve come in recognizing fibromyalgia and chronic fatigue syndrome over the last decade- and how much further we still have to go.)
Let’s face it, there are a lot of misconceptions out there about mental health. “We all get sad, sometimes, you just have to suck it up and move on!”; “We’re all a little ADHD these days… SQUIRREL!”; These kinds of comments minimize the experiences of people who struggle daily with the symptoms of their disability and in ways that we would never allow others to minimize or characterize a physical or apparent disability.
Because of the nature of many mental health disorders, comments or stereotypes that “should be” easily brushed off can instead exacerbate symptoms. A vast majority of people who suffer from ADHD also suffer from Rejection Sensitivity Dysphoria (RSD), which is an extreme emotional sensitivity and emotional pain triggered by their perception (not necessarily the reality) that they have been rejected, teased, or criticized by others; they feel emotions with such intensity that it hurts, like an “emotional sunburn”- seemingly small things can be jarringly painful for someone with RSD. People who suffer with anxiety and depression often struggle with rumination, which means that their brain gets stuck in a repetitive pattern of going over a thought or problem over and over and over again. The themes of rumination are typically about being inadequate or worthless; the repetition of thought and inability to break out of the thought cycle creates anxiety; now I’m anxious about my anxiety and I’m ruminating on that as well. The rumination intensifies, reinforces the feelings of worthlessness, and deepens the anxiety and depression.
See, the way the brain functions in a person suffering with a mental health disorder is different- their brain chemistry makes it hard to switch perspectives to find their way out of a negative thought pattern or to self-regulate emotional responses. Negative thoughts light up the neural pathways that connect with other times they felt the same way, which reinforces these feelings. A person has to learn how to consciously disrupt their brain’s natural neural pathways and activate the neural pathways that connect them with times they felt a more positive emotion, which can be pretty tough to do, especially while stuck in a thought-loop of inadequacy or experiencing sensory overload. All of this can lead to cognitive resource depletion, which can result in impaired working memory and decision making.
The examples above help to illustrate a few things:
1. Something that may be second nature to you may require a lot of energy and brain power to someone who is neurodivergent (an individual whose mind works differently than what is considered “normal” or socially acceptable).
2. Mental health stigmas hurt real people in real ways. An individual isn’t weak because they suffer with a mental illness; their brain literally works differently. In fact, it could be argued that these are some of the strongest people you know- their fight doesn’t stop with societal perceptions; they also have to fight the lies their own brain tells them about themselves and their worth. Heavy stuff, right?
3. Even if two individuals share the same diagnosis, what works for Jerry to manage his illness isn’t necessarily going to be what works for Bobby. That’s where the interactive accommodations process comes into play- the person in the best position to explain the barriers they’re facing and what kind of accommodation would be effective to help them overcome those barriers is the individual with the disability; the employer is in the best position to figure out how to implement and execute the accommodation.
Where the ADA comes in
The ADA requires an employer to provide reasonable accommodation to an employee with a disability. The employer may request medical documentation of the disability to substantiate the need for an accommodation under many circumstances. As a practical matter, it’s recommended to have a standardized process in place to ensure that you’re only asking for documentation necessary to establish that the employee has an ADA disability and that the disability necessitates a reasonable accommodation.
As part of the accommodation request, the employer should engage with the employee to determine the nature of the disability and the functional limitations caused by the disability. The employee may propose a specific accommodation and/or the employer may propose alternative accommodations. The ADA does not require an employer to implement the exact accommodation requested; it only requires that the accommodation be effective in removing workplace barriers impeding the individual with a disability.
Determining what accommodation would be effective requires an ongoing dialogue between the employee and the employer. The interactive process doesn’t end because an accommodation is implemented; if an accommodation is not proving to be effective, the employer and employee may have to try several different accommodations before they find the one that works effectively for the employee that doesn’t create an undue hardship for the employer.
Types of accommodations
Below are some types of accommodations employers be required to implement under the ADA. While some accommodations require a monetary expenditure, such as installing a wheelchair ramp, many effective accommodations are “free” to implement but priceless to the individual with a disability.
Job Restructuring: includes modifications such as reallocating marginal job functions that the employee cannot perform because of their disability (remember, you’re never required to reallocate essential job functions- more on that in a future article) or altering when, where, or how essential or marginal job functions are performed. For example, allowing an employee to work from home or providing them with a quiet workspace with a door versus a cubicle in an open office environment could be accommodations required under the ADA.
Leave: leaves of absence may be considered a reasonable accommodation under the ADA. We wrote an article about this last month; check out the link at the bottom to read more about this type of accommodation.
Modified Schedule or Part-Time: absent undue hardship, an employer may be required to adjust the arrival or departure times, provide periodic breaks, alter when certain functions must be performed, or provide a part-time schedule, even if not available to other employees.
Modified Workplace Policies: it is a reasonable accommodation to modify a workplace policy when necessitated by an individual’s disability-related limitations, absent undue hardship, even if the employer continues to apply this policy to other employees. For example, an employer may be required to modify attendance policies, such as allowing an employee to take vacation time without scheduling it in advance to accommodate anticipated but unpredictable “flare-ups” or incidents caused by their disability.
Reassignment: often referred to as the “accommodation of last resort”, if the employee is not able to perform the essential functions of their position with or without a reasonable accommodation, an employer may be required to reassign the employee to another vacant position for which they are qualified. Before considering reassignment, the employer should first determine that there is not effective accommodation that would allow the employee to perform the essential functions of their current role or that all other accommodations would impose an undue hardship.
Remember, an accommodation is a tool that allows an individual with a disability to perform to the best of their ability. The interactive process gives an employer the opportunity to build a strong relationship of trust with the employee and, ultimately, improves employee morale and loyalty. Employees who believe their employer cares about their well-being feel a sense of loyalty to the company- they stay with you longer, they’re more productive, they positively impact the culture, and they treat your customers better. On top of that, just like gender diversity, racial diversity, and diversity of thought and experience, neurodiversity can be a valuable benefit to an organization, bringing different perspectives, new approaches, and unique solutions to the table.
Join us next week as well continue with part 3 of our ADA Compliance with Compassion series. Still to come:
Identifying essential job functions
Determining undue hardship
Managing performance/attendance for individuals with accommodations.
If you have any questions regarding ADA compliance issues, please feel free to contact Columbus, OH attorney, Chisa Chervernick.