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Virus Mental-Health Issues Complicate Legal Gray Area Over Leave

June 1, 2020, 9:56 AM

Psychological distress triggered by the coronavirus pandemic could force employers to address the legally murky area of whether leave is a reasonable accommodation.

One-third of nearly 10,000 Americans surveyed by the Pew Research Center in March and April said they’ve experienced heightened psychological distress, such as anxiety, sleeplessness, or depression. The Equal Employment Opportunity Commission, which enforces the Americans with Disabilities Act in the workplace, acknowledged in its pandemic guidance that employees with pre-existing mental health conditions could have a harder time adjusting to life—and work—during a public health crisis.

The ADA protects workers whose mental-health conditions qualify as a disability, but businesses can, and should, step in where those protections end by offering employee-assistance programs or other resources to ease work-related stress, several management and labor attorneys told Bloomberg Law.

Employers must field requests for accommodation from workers with mental-health conditions that qualify as a disability as well as from those who express a more general fear related to the pandemic. An employer might then have to determine if requested leave is an appropriate accommodation, depending on its duration. That decision involves what Paul Hastings partner Marc Bernstein described as an “unsettled area of the law.”

“Employers right now are very concerned about the health and well-being of their employees—both their physical health and their mental health—particularly in these times,” added Bernstein, who represents and consults employers on workplace legal matters. “They want their employees to be healthy.”

Workers under the ADA must ask for an accommodation for a mental-health condition, which then triggers an interactive dialogue with the employer, according to the EEOC. The law requires businesses to accommodate a worker whose mental-health condition qualifies as a disability, and a request for an accommodation must be treated the same as one for a physical disability.

Businesses also have a right to ask a doctor to verify a worker’s mental-health condition—another aspect that could be complicated by the pandemic because of provider-access issues and concerns over exposure and social distancing.

Some lawyers believe requests for mental-health accommodations could spike, especially in return-to-work scenarios.

“I suspect there might be more of these conversations happening,” Shaylyn Cochran, a Cohen Milstein partner who represents employees, said of workers notifying employers for the first time about a mental-health concern.

Disability? Or General Fear?

Whether a mental-health issue rises to the level of a disability covered under the ADA is a question that should be answered by a medical professional, not the employer, Cochran said. A disability is defined as an impairment, either physical or mental, that substantially limits a major life activity like sleeping, concentrating, communicating, and working.

Workers can determine in consultation with a medical professional what kind of accommodation to request of an employer, and that begins a dialogue known as the interactive process, she said.

“Sometimes, employees can be less direct about their situations, particularly if it’s mental health,” said management attorney Phillip Schreiber, a partner with Holland & Knight. “But what really triggers the employer’s obligation is if the employee comes to the employer and asks for an accommodation.”

Employers have a right to ask for documentation that a worker has a disability as defined by the ADA, but it might be challenging for workers to see a mental-health professional during the pandemic, said Jennifer Budoff, an attorney with Mintz. She said she has consulted employers to come up with an interim solution if a worker can’t immediately get verification, while hedging against an employee’s expectation that the short-term fix might not be the final accommodation.

Not all mental-health conditions will rise to the level of a covered disability, and “a general nervousness or fear” of returning to work need not be accommodated, Schreiber said.

“That is real and tangible to the employee, and expressed in good faith, but nevertheless, that is not a disability,” he said.

Leave as an Accommodation

Taking a leave of absence from work might be an appropriate accommodation for some mental-health conditions, particularly those exacerbated by Covid-19, lawyers said. But the proper duration of the leave is a legal gray area, and allegations of discrimination and harassment could arise.

EEOC charges and disability-bias lawsuits can be brought if an employer offers a limited amount of leave or declines to extend it, Schreiber said. However, business are not required to accommodate a request for an “open-ended or indefinite” leave—which poses a hurdle for mental-health-related leaves, because it’s not easy to predict when someone will be able to return to work, he said. Legal challenges arise when employers have to decide if a leave has become indefinite.

The Family and Medical Leave Act generally requires employers to grant up to 12 weeks of unpaid leave to workers recovering from or treating a health condition. At a minimum, workers can usually take those 12 weeks of leave if they qualify, Schreiber said, but that doesn’t answer the question of how much more leave a worker can take under the ADA after that period ends.

The U.S. Supreme Court declined in 2018 to take up a case that could have clarified the maximum amount of leave an employer could offer. That left in place the opaque overlap of unpaid leave under the ADA and the FMLA.

Congress’ Families First Coronavirus Response Act, passed in March, provided for virus-related paid leave, but a majority of the workforce might not be eligible for coverage.

Pre-virus case law also shows that legal conflicts can arise after leave is taken, particularly retaliation or harassment claims.

Union Pacific Railroad Co. will face trial over disability discrimination and other claims after the company allegedly restricted a former train conductor from performing some essential job duties after a 2016 suicide attempt. The worker was hospitalized and on leave for mental-health treatment before attempting to return to work.

Department store Bergdorf Goodman Inc. was sued for harassment last year, after a manager allegedly repeatedly called a worker “crazy” when he returned to the job after a mental-health-related medical leave.

The U.S. Court of Appeals for the Eighth Circuit in October said a jury will decide whether a Dollar General employee in Missouri was improperly denied leave as an accommodation for anxiety, depression, and migraine headaches, after she was told she’d have to quit to “get better.”

Communication is Crucial

Even if a mental-health condition doesn’t rise to the level of a qualifying disability, management attorneys are advising employers to communicate to an employee about additional resources that might be available.

“Most good employers will try to make an accommodation regardless of whether it applies, because they want the worker to be able to perform the worker’s duties in a safe way,” Bernstein said. “Employers don’t want their workers to be unsafe.”

Businesses are turning to employee-assistance programs and insurance-covered mental-health care as resources to supplement formal accommodations, and unions are making sure workers know what resources are available to them.

One compromise that might easily be agreed upon is a temporary period of remote work, especially if the worker was already doing so, said Dr. Brian Nussbaum, a psychologist with the American Federation of Government Employees.

“Our first step is to educate and support,” Nussbaum said. “The ideal is that we don’t get into a struggle with management, but, rather, educate our front-line workers regarding what’s possible, what’s available.”

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: John Lauinger at jlauinger@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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