The Oklahoman

Q&A WITH LAUREN OLDHAM

- PAULA BURKES, BUSINESS WRITER

Mental health workplace claims rise

Q: Why has there been a surge in mental health disability discrimina­tion claims?

A: One in four American adults will suffer from a mental health impairment, and the Equal Employment Opportunit­y Commission (EEOC) reports a surge in the number of mental health disability discrimina­tion claims being made as more employees become aware of their rights under the Americans with Disabiliti­es Act (ADA). The EEOC recovered approximat­ely $20 million from employers last year for people with mental health impairment­s who alleged they were denied employment or job accommodat­ions.

Q: What constitute­s mental impairment?

A: Mental impairment­s include but are not limited to psychologi­cal disorders, intellectu­al disabiliti­es, organic brain syndrome, emotional or mental illness, and certain learning disorders. Covered mental disabiliti­es almost always include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder and schizophre­nia.

Q: What should employers do to ensure compliance? A: Employers should be diligent in educating managers on how to comply with the ADA, what constitute­s mental impairment­s, and the key steps they must take to fulfill the legal duty to engage in the interactiv­e job accommodat­ion process in good faith. It is recommende­d this be done in concert with legal counsel who can audit policies and procedures and assist with training.

Q: What are key aspects of the job accommodat­ion process? A: Employers must grant reasonable accommodat­ions for mental disabiliti­es unless doing so would impose an undue hardship. The process often requires an evaluation of the reasonable­ness of a requested accommodat­ion, and a proper evaluation should include an individual­ized assessment of the situation. While employers are required to engage in the interactiv­e process and explore possible accommodat­ions, they are not required to alter or eliminate any functions of the job that are truly essential. Employers are also not required to create a new position for the employee. Q: What should trigger the process?

A: Employers should begin the process when one of the following occurs:

• An employee discloses a mental impairment and requests an accommodat­ion. Keep in mind, an employee does not have to use magic words such as “disability,” “accommodat­ion,” or “interactiv­e process” to trigger the duty to engage in the interactiv­e process;

• An employer knows or is given a reason to know an employee is disabled and requires an accommodat­ion (even if the employee does not request it); or

• When an employer has a reasonable belief based on objective evidence that an employee’s inability to perform an essential job function is due to a mental condition.

Q: What are examples of common accommodat­ions? A: Some examples of possible reasonable accommodat­ions include altered break and work schedules (e.g., scheduling work around therapy or other appointmen­ts), quiet office space or devices that create a quiet work environmen­t, changes in supervisor­y methods (e.g., written instructio­ns from a supervisor who usually does not provide them), altering shift assignment­s and permission to work from home.

 ??  ?? Lauren Oldham is a labor and employment attorney with GableGotwa­ls law firm.
Lauren Oldham is a labor and employment attorney with GableGotwa­ls law firm.

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