DOL Releases Guidance on Mental Health Accommodations for Mental Health Awareness Month

Mental health issues, such as depression, anxiety and post-traumatic stress disorder are covered under both the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA). However, unlike physical disabilities, such mental conditions are often not readily apparent or can be misconstrued and offer unique challenges to employers as to how to reasonably accommodate workers. It can be difficult to determine what constitutes a disability under the ADA or what qualifies as a “serious health condition” under the FMLA.

In conjunction with Mental Health Awareness Month, the U.S. Department of Labor (DOL) has a new Mental Health at Work website, that offers information and resources to employers on how to comply with the law and properly address mental health issues in the workplace. This includes guidance on what questions employers can legally ask employees about their mental health and what accommodations might allow the employee to perform the essential functions of their job. Advice to management and supervisors on accommodation include the following:

• • Communication of assignments and instructions in the employee's preferred learning style (written, verbal, e-mail, demonstration); creation and implementation of written tools such as daily "to-do" lists, step-by-step checklists, written (in addition to verbal) instructions and typed minutes of meetings.
  • Regularly scheduled meetings (weekly or monthly) with employees to discuss workplace issues and productivity, including annual discussions as part of performance appraisals to assess abilities and discuss promotional opportunities.
  • Development of strategies to deal with problems before they arise.

The guidance also includes ways that readily available technology can be used as a reasonable accommodation, depending on the employee’s particular mental health condition, such as:

• • Tape recorders for recording/reviewing meetings and training sessions.
  • "White noise" or environmental sound machines.
  • Handheld electronic organizers, software calendars and organizer programs.
  • Remote job coaching, laptop computers, personal digital assistants and office computer access via remote locations.
  • Software that minimizes computerized distractions such as pop-up screens.

The DOL website also includes information on the Mental Health Parity and Addiction Equity Act of 2008, which is a federal law that generally prevents group health plans and health insurance issuers that provide mental health or substance use disorder (MH/SUD) benefits from imposing less favorable benefit limitations on those benefits than on medical/surgical benefits.

For advice or guidance regarding this topic, please contact Mark Fijman or any member of the Phelps Labor and Employment team.