Accommodating Mental Disabilities During and After the Pandemic.

• Author: Koepke, Alicia H.

The COVID-19 pandemic has caused increased stress, anxiety, and depression for many people, but particularly those suffering from preexisting mental illness. A variety of factors may play into such individuals not obtaining the help they need to succeed at work, including their fear of disclosing their disabilities due to the stigma associated with mental illness and the inability of others to identify mental disabilities that lack the visibility of physical disabilities. This article describes the rights and obligations of all parties when mental illness affects the workplace, and discusses how the changes to work environments during the pandemic may affect disability accommodation obligations even after the pandemic ends.

Mental Disabilities Under the ADA

The Americans with Disabilities Act (ADA) (1) delineates the rights and responsibilities of applicants, employees, and private employers in this context. (2) The ADA prohibits covered employers (3) from "discriminat[ing] against a qualified individual (4) on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." (5) The ADA requires covered employers to make "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business." (6)

The ADA anti-discrimination and reasonable accommodation provisions apply to "qualified individual[s]" (7) with a disability. (8) "[D]isability" is defined as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." (9) This article focuses on mental impairments that include "[a]ny mental or psychological disorder," such as an "emotional or mental illness." (109)

Under the ADA, an impairment meets the first prong of the disability definition (the actual disability prong) "if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." (11) An impairment need not prevent or significantly or severely restrict an individual from performing a major life activity to be considered substantially limiting. (12) Major life activities can include caring for oneself, eating, sleeping, concentrating, thinking, communicating, working, operating neurological and brain functions, (13) and interacting with others. (14)

Because a disability determination "requires an individualized assessment," the U.S. Equal Employment Opportunity Commission (EEOC) regulations do not identify impairments as constituting per se disabilities. But the EEOC provides examples of impairments that "will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity," including "major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia," because they "substantially limit brain function." Caselaw analyzing the ADA shows that other impairments, such as social anxiety disorder, (15) postpartum depression, and separation anxiety (16) can meet the ADA's definition of disability as well.

Employer Knowledge of a Disability and Need for Accommodation

Disputes arise when employees fail to put their employer on notice of their mental illness or their need for an accommodation relating to such a disability. To start, an employer's duty to accommodate does not arise unless the disability is "known" to the employer. (17) An employee generally must notify an employer of his condition and need for an accommodation to trigger the employer's obligation. (18) Vague references to symptoms, such as depression, or requests for a change in the workplace without explaining how such requests are linked to a disability, are generally insufficient, as the First Circuit explained in Reed v. LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001). In Reed, the First Circuit affirmed summary judgment in favor of an employer on a failure to accommodate claim because (among other reasons) the plaintiff failed to put her employer on notice of her bipolar disorder or the need for an accommodation due to her disability. (19) The plaintiff's vague reference to her therapist, who had previously sent notes to the employer saying the plaintiff was being seen for depression, were insufficient, in part because they "gave no notice of the aspect of her illness relevant to the accommodation she sought, namely, her psychological inability to control rage." (20)

A similar issue arose in Miller v. National Casualty Company, 61 F.3d 627 (8th Cir. 1995). In Miller, the plaintiff initially stated in a questionnaire that she did not suffer from a mental condition that limited her ability to perform her job. Later, she told her employer she needed a few days off to deal with stress, saying she "could not take the stress of [her] job and [her family problems] both at the same time." The plaintiff then provided a note from a health-care provider stating the plaintiff had a "situational stress reaction." The plaintiff's sister told the employer that the plaintiff "was mentally falling apart and the family was trying to get her into the hospital." But the plaintiff failed to tell her employer that she had a history of manic depression until more than a week after she had been terminated for failing to return to work or provide medical documentation supporting her absences. The employee's post-termination notice was too little, too late; the Eighth Circuit affirmed summary judgment in favor of the employer because the employer did not have actual knowledge of the disability when it terminated her, and "it would have been impossible for the company to have made that disability the basis for the termination." (21)

Even after an employer learns that an employee has a disability, the employee generally needs to explain when or how the disability requires an accommodation. For example, in Russell v. TGMissouri Corp., 340 F.3d 735, 742 (8th Cir. 2003), an employee walked out in the middle of her shift, after being warned that doing so would constitute an unscheduled absence, telling her supervisor only that she needed to leave immediately and was "not feeling well." The employee made no reference to her bipolar disorder or mental condition when leaving, which led the Eighth Circuit to...