Over the last 18 months, nearly everyone has experienced increased stress as once simple decisions about day-to-day routines became more complicated, going to work and school became a potential health risk, and many families experienced financial hardship. Stress associated with the pandemic has exacerbated mental health impairments and other conditions triggered by stress and led people to seek professional help for their struggles. Consequently, employers may be seeing an uptick in accommodation requests stemming from mental health conditions and intellectual and developmental disabilities.
 
The accommodation process can be tricky to navigate for employers of all sizes, as is evident from recent reporting on alleged systemic issues with Amazon’s leave process. But the EEOC remains committed to ensuring that individuals with disabilities receive fair treatment and reasonable accommodations in the workplace, particularly as the percentage of individuals with disabilities who are employed fell in 2020 compared to 2019. Employers have the opportunity to show employees they are valued and appreciated by diligently working with them to accommodate their disabilities, which can demonstrate a commitment to work/life balance, help prevent employee burnout, and reduce turnover. To effectively respond to accommodation requests, especially those related to mental health conditions and other disabilities that may not have straightforward accommodations, it is best to have an accommodation policy in place and a comprehensive plan of action. Our tips for your plan of action include the following:
 
1. Provide regular training to managers on your accommodation and leave of absence policies. Even if an employer’s policies state that accommodation or leave requests should be directed to human resources or a particular person, managers need to know how to respond and who to involve when an employee may be requesting an accommodation. In short, managers need to know how to issue-spot:
 

• What forms may an accommodation request take?
• What types of information related to an accommodation request are confidential?
• When is an employer obligated to initiate a discussion about whether an employee may need an accommodation?

 
All of these topics, and more, deserve attention in training provided to managers on their role in responding to an accommodation request. Because disability accommodation is a complicated area of law that requires fact-intensive inquiries, and managers can bind the company when discussing accommodation requests with employees, it is best to provide training to managers to ensure they understand their responsibilities under company policies. Training on the front end helps to prevent unintended missteps in the interactive process.
 
2. For conditions that are not obvious, ask for documentation from the employee’s health care provider. An employer should not accept an employee’s self-diagnosis of a mental health impairment. Employers may ask the employee to provide reasonable documentation regarding the disability and the employee’s functional limitations as part of the interactive process from a healthcare provider. Employers may even seek employee authorization to speak directly with the healthcare provider to help clarify the employee’s limitations and discuss whether various accommodations would allow the employee to continue to work.
 
3. Be willing to think outside the box. Most employers are not healthcare professionals. Employers may encounter conditions with which they are unfamiliar. Similarly, conditions may require an accommodation that the employer has not utilized before or that may not be clear initially. Do not let that lack of knowledge stop you from exploring an employee’s options. In the last couple of years, the EEOC has pursued more lawsuits against employers for failing to accommodate and discriminating against individuals with the lesser known disabilities.
 
This year, the EEOC has filed two disability discrimination lawsuits against two restaurant franchises (Subway and JDKD Enterprises) alleging that employees with autism spectrum disorder (“ASD”) were fired because of their disability. In 2019, the EEOC settled a lawsuit against Party City for $155,000 after the employer allegedly refused to hire an individual with ASD and severe anxiety who attended the job interview with a job coach and was subjected to discriminatory comments by the hiring manager.
 
Before rejecting an applicant or request for accommodation because they present with an atypical situation, follow your policy, dialogue with the individual, and keep an open mind.
 
4. Never underestimate the value of an extra follow-up. Do not give up on the interactive process too quickly. If an additional, polite reminder about a paperwork deadline may be helpful (but not overly repetitive), send it. If an employee needs an additional week to get an appointment with her doctor, give her an extension. Document these interactions, minor and major, along the way. Often, it is the small things that define the big picture of whether the employer engaged in the interactive process in good faith.
 
In a failure-to-accommodate case, the paper trail showing an employer’s efforts to accommodate the employee’s disability (or lack thereof) speaks volumes. An employer who too quickly denies an accommodation or fails to document each step of the process is unlikely to succeed in defending against a complaint that it denied an employee a reasonable accommodation in violation of the ADA.
 
5. Consult an attorney before denying an accommodation request. Denying an accommodation request has consequences; it may create legal risks for the employer and exacerbate the employee’s health condition. An attorney may be able to suggest different strategies to ensure the employer exhausts its options as part of the interactive process or help in crafting communications to the employee to minimize the risk of liability.
 
The Spilman Team is available to help you navigate any workplace accommodation issue you may encounter. If your company needs assistance with training managers, navigating the accommodation process or drafting an accommodation policy, we are ready to assist.