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Mental Health Leave Requests: An Employer’s Legal and Moral Obligation

Does the ADA apply?

Like a physical ailment, a person’s mental health can affect their ability to work and sometimes even their ability to be available to work. In certain circumstances employers have a legal obligation under the American’s With Disabilities Act (the ADA) to provide certain accommodations and sometimes even grant leave requests to employees experiencing mental health issues. This article explores the applicable legal and moral obligations that may be brought up by mental health issues under the ADA.

A situational example

Let’s consider the following scenario to explore this issue. Per an email to a supervisor, your employee requests a week off because the employee is “depressed.” In addition, the employee does not have any vacation, sick days or any leave available per company policy.

The ADA may apply to this situation. However, application can be complex because unlike FMLA, the ADA is not recognized as a leave statute, and eligibility requirements are grey. For background, the ADA is a federal law that only applies to employers with 15 or more employees and prohibits discrimination against job applicants and employees with disabilities. Under the ADA employers are required to provide a reasonable accommodation to a qualified individual with a disability to allow them to perform the essential functions of the job. Importantly, a leave of absence may be considered a reasonable accommodation under the ADA.

Does the ADA apply?

First, let’s assume your business is covered by the ADA. Second let’s assume that depression meets the definition of a disability under the ADA, as a physical or mental impairment that substantially limits one or more major life activity. If the purpose of the requested leave of absence is directly correlated with the disability and will allow the employee to perform the essential functions of  the role upon return, then yes, the ADA may consider the leave a reasonable accommodation, unless it would cause an undue hardship on the organization.

We have a few things to unpack here. In consideration of the leave request, the employer has the right to request medical certification as necessary to ensure that the requested accommodation is necessary and reasonable. The ADA does not require the employer to provide the exact accommodation requested if an alternative accommodation exists that would be effective to allow the employee to perform the essential functions of the role. Accommodations can include options for telecommuting, flexible work schedules, alternative shift start/end times, etc.

Importantly, a leave of absence may be required even if you don’t offer a leave of absence program. An ADA leave accommodation could apply whether the employee is eligible for FMLA or not, and whether the employee has exhausted their FMLA or not. Employers that have “automatic termination” provisions for employees who do not return from leave on time or exhaust their FMLA time are highly encouraged to remove these provisions, as they may run afoul of the ADA. Even if FMLA has been exhausted, if the leave of absence is tied to a disability and there isn’t an undue hardship on the company, that leave may be protected by the ADA.

Can you deny an accommodation?

An employer may deny an accommodation if it would cause an undue hardship on the company. Some of the factors to evaluate include the length of the leave, the impact on other employees in performing their roles, the impact on customers, and the impact on business operations. For example, if this employee is the only person employed in a specialized role and leaving that role unfilled for the duration of requested leave would severely impact employer’s ability to meet customer needs during that absence, you may have an undue hardship argument. But that does not alleviate the requirement to provide an alternative accommodation that would not create an undue hardship.

The accommodations process is meant to be interactive and ongoing and trial and error may be necessary before landing on an accommodation that works for both the business and the employee. The interactive process generally involves the employee, the employee’s treating physician and the employer.  If no accommodation exists that would allow the employee to perform the essential functions of the role, the ADA may require the employer to consider alternative roles that the employee could perform with or without a reasonable accommodation before considering termination of employment. Employers must understand that their obligations under the ADA are ongoing - each accommodation must be evaluated on a case-by-case basis.

Employers must understand that their obligations under the ADA are ongoing - each accommodation must be evaluated on a case-by-case basis.

Conclusion

The ADA is one of the fastest growing areas of litigation in employment law due to its complex nature and compliance should be a top priority for businesses in 2019. We would encourage employers not only to understand the legal issues but also the moral imperative - accommodate when possible and go above and beyond  where appropriate. Not only does this protect the business – it’s the right and moral act.

Here at AnthonyHR, we are experts in ADA compliance. We can help your organization set up a compliant ADA accommodations process, provide guidance on individual accommodations requests, and assist with ongoing consultation support for the accommodations process, performance or attendance issues, and terminations for employees covered under the ADA. Contact us today for a free consultation.