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Mental Health Leave ADA

Mental Health Leave Under the ADA

Under the Americans with Disabilities Act (ADA), employers are required to provide reasonable accommodations to employees with mental disabilities to enable them to perform the essential functions of their jobs. Leaves of absence often qualify as a reasonable accommodation. This includes allowing employees to use either accrued paid leave or unpaid mental health leave to treat or manage their conditions.

Mental Health “Disabilities”

Federal law prohibits employment discrimination based on mental disability. The ADA broadly defines disability as a “physical or mental impairment that substantially limits one or more major life activities.” This definition also covers employees with a record of having a mental disability or a perception of having one.

Many state anti-discrimination statutes also prohibit discrimination based on mental health conditions. Definitions of “disability” may vary under state law, sometimes expanding on what conditions the ADA protects.

Mental health conditions that might qualify as disabilities under the ADA include depression, anxiety, and post-traumatic stress disorder (PTSD), among many others.

Click here to read more about “What Is a Disability Under the ADA?”

Employee Privacy

Under the ADA, employers cannot require applicants or employees to disclose a disability, with a few exceptions. Employees may need to disclose mental disabilities when they are requesting a reasonable accommodation. Then, employers can ask for medical records describing the disability and employee limitations. All information related to employee disabilities must be kept confidential.

Requesting Mental Health Leave

Employees can request an accommodation at any time during employment. The request can be in plain language and does not have to include the term “reasonable accommodation.” Requests need not be in writing. Employees typically provide notes from their doctors. Employers may also require employees to undergo evaluation from a health care provider of their choice as long as the employer covers the cost.

The U.S.  Equal Employment Opportunity Commission (EEOC) oversees the enforcement of the ADA. In guidance documents, it gives an example of a situation where a secretarial employee requests time off “because of her medical condition.” This statement is sufficient to put the employer on notice that the employee is requesting a reasonable accommodation. But the employer can ask for medical documentation to learn the specifics of the employee’s condition and limitations.

Employers do not have to grant a leave of absence every time the employee requests one. But they must determine whether the employee has a disability, whether leave is a reasonable accommodation, and whether, even if reasonable, the leave would pose an undue hardship on the employer. All of these determinations depend on the circumstances.

Click here to read more about “Reasonable Accommodations of Disability in Employment.”

Return to Work

When returning from leave, employers can require employees to undergo a medical examination to determine fitness for duty. Employees often ask for extended leave or other accommodations upon return. Employers may honor these requests. But organizations are not required to provide accommodations that would create an undue hardship on the workplace. Nor must employers permit an employee to work if doing so would pose a direct threat to anyone’s health or safety.

The EEOC gives the example of an employee returning from a leave of absence after she underwent a hospital stay and adjusted her medication. The employer may request a fitness-for-duty evaluation to ensure the employee can still perform the essential functions of the position. But the medical examination must be limited to her mental condition.

What Do the Courts Say About Mental Health Leave?

Employers must evaluate every situation carefully to determine their obligations under the ADA.

Here are just some examples of what courts have said in specific cases:

In one case, a teacher with an anxiety disorder requested an extended leave of absence as an accommodation. The court upheld the employer’s refusal to grant the leave because there was no certainty that the teacher would be able to return to work at the end of the leave

In another case, a manufacturing employee returned from leave due to severe depression. Upon return, he requested the accommodation of having no contact with co-workers or supervisors. The court upheld the employer’s determination that this accommodation was unreasonable.

These are just two among numerous cases that have resulted in litigation. Obviously, employers would prefer to avoid litigation under the ADA, whether related to mental health leave or other employee disability issues.

No Retaliation

Employers (through supervisors and co-workers) may not retaliate against employees for requesting or taking mental health leave. This includes both taking tangible job actions (e.g., firing) or making the employee’s workday miserable (e.g., harassment).

Employer Takeaways

According to the National Institute of Mental Health, about 18.5% of the United States population report having a mental health condition during the past year. Thus, mental disabilities are among the most prevalent types of disability that the ADA covers.

Managers and supervisors must accept that mental health conditions qualify for the same general protections as physical impairments. As with many disability accommodation issues, mental health leave is often not a straightforward subject. Accordingly, employers should consult with an experienced employment attorney when these issues arise.

NY Sexual Harassment Webinar

NY Sexual Harassment (Webinar Recap)

On October 2, 2018, I presented a complimentary webinar called “NY Sexual Harassment.” For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • New York Laws Affecting All Employers
  • Sexual Harassment Policies
  • Mandatory Training Programs

Every New York employer must meet new legal requirements beginning October 9, 2018. This webinar explains the requirements, detailing recent New York State compliance guidance.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “NY Sexual Harassment”

New state laws affect every employer in New York. Even if you only have one employee. Make sure you know what you must do right away to be in compliance.

First, you must have a written sexual harassment policy. Many employers already had these before the new laws. But your old policy probably doesn’t meet the new standards. Learn your options under the new law.

Second, you have to train every employee about sexual harassment issues every year! You have until October 9, 2019, to complete the first round of training. But it’s not too early to start planning for how you will meet this new requirement.

This webinar discusses both topics and points you the resources you need to come into compliance.

Don’t Miss My Future Webinars!

Click here to sign up for my email newsletter to be among the first to know when registration is open for upcoming programs!

Sexual Harassment Statistics

EEOC Releases 2018 Sexual Harassment Statistics

On October 4, 2018, the U.S. Equal Employment Opportunity Commission released its preliminary fiscal year 2018 sexual harassment statistics. The agency’s announcement reinforces its strong stance against all forms of workplace harassment in response to the #MeToo movement.

EEOC charges alleging sexual harassment increased by more than 12% from fiscal year 2017. EEOC sexual harassment lawsuits also increased by more 50%.

2017 Sexual Harassment Statistics

Based on final sexual harassment statistics for fiscal year 2017, the number of charges alleging sexual harassment had declined compared to the year before.

In FY 2017, the EEOC received 6,696 charges alleging sexual harassment. It obtained $46.3 million on behalf of sexual harassment victims.

Click here for more on FY 2017 EEOC data.

FY 2018

The 12% increase this year indicates that employees filed approximately 7,500 sexual harassment charges in FY 2018. That would represent the highest level since 2012.

During the fiscal year ending September 2018, the EEOC filed 66 harassment lawsuits. 41 of those included allegations of sexual harassment. These lawsuits involve a wide variety of employers, including those in the healthcare, transportation, manufacturing, and customer service industries.

Between litigation and administrative enforcement, the EEOC recovered nearly $70 million for employees alleging sexual harassment.

Respectful Workplaces

In its October 4, 2018 press release, the EEOC also discussed the “Respectful Workplaces” training program that it launched last year. This program “teaches skills for employees and supervisors to promote and contribute to respect in the workplace.”

Over 9,000 workers in both the public and private sectors participated in the training during the 2018 fiscal year. Another 13,000 employees participated in EEOC anti-harassment compliance training.

Ongoing Efforts

The EEOC stressed that it would continue to fight actively against all forms of harassment in the workplace.

“We have been traveling the country, spreading the word about what the EEOC is doing and the resources we have to offer,” said Commissioner Chai R. Feldblum, Co-Chair of the Select Task Force on the Study of Harassment in the Workplace.

“I am so proud of the EEOC staff who stepped up to the heightened demand of the #MeToo movement to make clear that workplace harassment is not only unlawful, it is simply not acceptable,” added Acting Chair Victoria A. Lipnic. “As the agency with expertise, as the enforcer of the law, and as an educator, the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and to promote harassment-free workplaces.”

Employers Should Take Note

These sexual harassment statistics demonstrate that employers must take this issue seriously to avoid liability.

It is not just the number of complaints that is going up. Overall, for charges alleging harassment, reasonable cause findings increased from 970 in FY 2017 to nearly 1,200 in FY 2018.

To help avoid joining these statistics, employers should both implement and effectively administer anti-harassment policies and procedures. Best practices include periodically training all employees about what constitutes workplace harassment and how to prevent and remedy it.