Mental health accomodations
Oh, dudes. Can I just tell you that the *new* Americans with Disabilities Act Amendments Act of 2008 has me a wee bit worried?
Other bloggers have given this topic a nice go-over (see Daniel Schwartz's take at CT Employment Law Blog as well as Michael Moore's at PA Labor & Employment Blog), so I won't repeat all of the details here. But let's take a look at a reader's question about ADA in light of the new amendment, shall we?
I have a couple of medical issues (mental health wise) that have been affecting my job and relations with co-workers. I have been getting worse recently and even got a discplinary action form yesterday. I think a great deal of the problems could be prevented/corrected with some accomodation. Can you tell me, as an HR person, what you think of my accomodation requests below. Are they reasonable? Doable?Sorry to hear you are having troubles at work.
1. Time off work to go see a counselor
2. Able to listen to music or a radio at my desk to provide "white noise" and enhance ability to focus
3. Clear, consistent expectations, (perferably written) with deadlines about tasks outside of my normal everyday work assignments.
4. Bi-weekly meeting (or at least email check in) with supervisor to go over goals, problems, etc.
5. Either extension of work day by 30 minutes or some other accomodation so that several times a day I can check online news sources, weather, and personal email. (the last is to maintain contact with support networks and family who understand my issues)
What do you think?
The first thing you want to consider is whether or not you actually have a disability under the ADA. Check out the Equal Employment Opportunity Commission's "The ADA: Your Employment Righs as an Individual With a Disability". Pay special attention to the little box in the upper right corner that discusses the Amendment Act of 2008.
Let's assume, for the purpose of this post, you do have a disability that is covered by the ADA and your employer is required to comply with this particular law.
Without knowing what the actual disability is, here is my opinion on your proposed requests for accommodation:
Time off work to go see a counselor - Absolutely reasonable. Time off should only be paid if you have enough time accrued to cover it, however.
Able to listen to music or a radio at my desk to provide "white noise" and enhance ability to focus - Absolutely reasonable as long as it doesn't significantly disrupt your coworkers. If it does, moving your desk (assuming you work in an office) is reasonable as well.
Clear, consistent expectations, (perferably written) with deadlines about tasks outside of my normal everyday work assignments - Reasonable, but subjective in nature. Your idea of clear & consistent may be different from your manager's. The details will need to be nailed down in order for this one to succeed.
Bi-weekly meeting (or at least email check in) with supervisor to go over goals, problems, etc - I'd say this is reasonable for employees who don't need accommodation, let alone ones that do.
Either extension of work day by 30 minutes or some other accomodation so that several times a day I can check online news sources, weather, and personal email. (the last is to maintain contact with support networks and family who understand my issues) - In my opinion, it's not reasonable to ask your employer to pay you overtime so you can use their equipment to perform personal stuff. When it comes to checking the news & weather, how does that accommodate your disability so you can perform the essential functions of your job? Is there are reason due to your disability that you cannot keep in touch with your support network without working overtime? Expect your employer to ask these questions. Better yet, expect them to ask for documentation regarding your disability & "functional limitations" by a health care professional.
Best of luck & let us know how it goes.
19 comments:
I am the one who asked the question - and you have given me some points I obviously need to clarify. First - the disabilities do qualify especially as they have significant impact on daily functioning and are long term... (Major depression, PTSD, and General Anxiety Disorder).
The "lengthening" of the work day - was not for overtime - but rather so I would be working 8 hours. The time I would be on the computer would be "break time" and not count towards the work day. So the extension is so I will be working on task for 8 hours.
Perhaps I need to explain that in a better way? Keeping in touch with reality (the news) and with my support system (email) keeps me grounded and keeps me from imagining all kinds of things that could be going on out there...
Anon - I'm still a bit confused. What length of shifts are you working now? Are you not provided with appropriate breaks per your state law already? This could be a whole other ball of wax....
In the past, employers were able to consider "mitigating measures" (such as medication) when determining if an employee's condition was considered a disability under the ADA. Now that the Amendment Act of 2008 is going into effect as of 1/1/09, mitigating measures other than "ordinary eyeglasses or contact lenses" are not allowed to be considered. This means employees such as yourself will have less difficulty "convincing" your employer that your conditions are covered by the ADA.
But, be advised that your employer doesn't have to give you the accomodation you necessarily want or recommend, they can choose an alternative.
This is such a slippery slope.
1. My boss yells at me which exasperates my anxiety. Can I have my boss do all communication through email or paper?
2. I'm paranoid that the security camera is faced towards my registered and that people are watching and recording me. Can I have the camera turned away?
My company works with the SPMIs and I'm certainly sympathetic to this but it can be a can of worms. Where do the accommodations stop?
I want to pick up on a single part of the post.
"Bi-weekly meeting (or at least email check in) with supervisor to go over goals, problems, etc - I'd say this is reasonable for employees who don't need accommodation, let alone ones that do."
Bi-weekly? If supervisors aren't doing it daily, there's a problem.
OMG Wenchie! Totally off topic-but I just saw your Janet Evanovich for sale! I LOVE Stepahnie Plum!
A VERY slippery slope. I'm don't particularly want the government mandating good management, which is what some of this (weekly meetings, clear goals is). I want *companies* mandating good management, but I'm not comfortable having the government involved in requiring that. The libertarian in me comes out.
Also, I'm going to be candid here: some of this sounds a little sketchy. Maybe it's completely legit, and if so I apologize, but the poster should at least be aware that many people are going to react to this by thinking he/she is trying to scam the system or is being silly.
it's great that you receive questions from readers!
slippery slope indeed. i would add... it's hard to say whether it is reasonable to give the person time off to see a counselor... how frequent? how long will they be away? is their job one that requires them to be present and servicing customers or clients during specific/set hours/for shift? scheduling of the appointments and its impact to business operations would have to be considered. i feel like a grinch stealing christmas raising this... but indeed it is a slippery slope...
I couldn't be more sympathetic to mental health issues, and totally understand that every individual needs special accomodation to do their best at work.
I can't imagine any scenario under which you'd need to check the weather and news to support your mental health. As far as reaching out to support, as HR Wench said you should be able to do that on your regular breaks per state law (30-60 minutes for lunch and 15 min breaks throughout the day). If you're asking more than that I doubt it is justifiable.
I am jumping on the slippery slope bandwagon here. This is just so murky.
Also, with regard to the white noise- I'm curious what kind of music you want to listen to. Can you not wear headphones?
Are these things that your counselor has suggested?
Also, have you considered the idea that this working environment is not a positive one for you and you might want to seek out a new employer?
Everyone calm the F down.
Sorry, I'm super crabby today. My office is in the medical office wing of a MALL and everyone and their grandmother is here today and finding a parking space was murder.
Rachel - ALL communication through email or paper is unreasonable and would most likely create undue hardship in almost any work situation I can think of. I would not grant that request & I would be blown away if the employee could provide documentation from a health care provider stating that particular accommodation was absolutely necessary. Secondly, having the security camera turned away from you when you are the cash register person is, again, not a reasonable request and would probably create undue hardship for the employer as it is a security measure that has helped catch criminals in the past and may even be required by the company's insurance.
That's the thing: you don't have to make accommodations for disabled employees that create undue hardship for the business. To answer your question, THAT is where accommodations stop.
AAM - The government isn't mandating good management in this case. The government has mandated that employees with disabilities that fall under the ADA have the right to be accommodated, by their employer, in a reasonable manner that does not create undue hardship to the business. The accodmodation the employee is requesting is reasonable and does not create undue hardship - just like providing her with a $50 ergo keyboard if she had carpel tunnel. The law isn't saying "if you're not nice to her she can sue you" or even "if you're a bad manager she can sue you".
Jessica - The courts have ruled over and over again that time off (at times, in addition to exhausted FML) is reasonable accommodation in many different employment situations.
Breanne - State laws vary when it comes to breaks and meal periods. In Oregon we only have to give people 10 minute breaks, not 15. :)
While the employee may just be in a crappy employment situation, she has the right to request reasonable accommodation for her qualified disability & expect her employer to follow the law regarding this. Let's not dismiss her as just being in a bad job fit because she is requesting what others may feel are frivolous accommodations.
HrWench- oh goodness, no, I don't mean to imply that the individual shouldn't seek out accomodations. I think so much of the ADA's work has been crucial for helping employers learn to accommodate others. I was thinking of myself, I guess. As someone who has an Anxiety Disorder, I can imagine needing headphones if the place I worked were chaotic. My anxiety level tends to raise with the level of noise and distractions. so, for me I can imagine choosing not to work in a bullpen/call center setting for example because it would provoke anxiety.
Similarly, I used to be claustrophobic if I couldn't see light. I would opt not to work someplace where there were no windows. I think the ADA does amazing things, but i also think employees should consider what is best for them as well.
HR Wench- i think what is missing here is the real tie from the disability to the requests. I can understand why someone wants a bi-weekly meeting, but i have a hard time seeing why that is tied to a disability.
I remember hearing these same slippery slope arguments from companies who didn't want to install wheelchair ramps. Guess what? The world didn't end and their businesses didn't crumble when they became accessible.
So I have a few questions for the readers.
Q: What's the difference between accommodating a physical and mental disability?
Q: Are physical accommodations much easier than mental accommodations?
Q: Is differentiating between a physical accommodation and a mental accommodation the REAL slippery slope?
Q: Is our society just an anti-accommodation society in general? Is that our natural tendency? To assume that employees, when given a chance, will take advantage of an employer or fake an illness? That accommodations will somehow spiral out of control if we do the kindhearted and morally correct thing?
I dunno. Like people in a wheelchair who cannot walk, I think that someone with an anxiety disorder deserves the benefit of the doubt and reasonable accommodation.
PS - The slippery slope argument, as well as the concept of precedent, are overrated. Good employment and disability lawyers know that precedent, while important, is only part of the story.
PS - This is also why I dislike the concept of HR generalists. We have a bunch of people with limited knowledge taking up a ton of time bantering around interpretations and opinions. If I'm a CFO, I want a lawyer on my staff or on retainer or -- at the very least -- a phone call away who can answer these kinds of questions. Chances are that most HR generalists will need an employment lawyer of some kind to review this situation. Can't we just either a) build that kind of knowledge into our HR team or b) skip the HR generalist and go to the right source?
People management & operations: we're doin it wrong.
Laurie UR awesome!
If this situation were happening in my office, of course I'd talk to an employment lawyer before doing anything. But does it strike me, absent that advice, as sketchy and like someone trying to take advantage of the ADA? Yes. Could I be wrong? Absolutely. Should an employer faced with these requests consult and follow the advice of a lawyer? Of course. But it's interesting to me that the employee has already decided what his/her accommodations must be and doesn't seem to show any awareness that without any context they might strike someone that way.
AAM - I didn't get that feeling from the person asking the question at all. I've found most people with disabilities covered by the ADA (in it's pre 2009 form) have no idea what their rights are, let alone the company's. I found it refreshing that this person had already looked up some info on it & outlined what she thought would work for her. I didn't get the feeling that she was saying "this is what I want and I darn well better get it or else!" Of course, that could happen (and I'm sure it has in the past - just not to me thankfully!) I hope she lets us know how the conversation goes with her HR rep. I'm curious as to how things will be handled. I hope it works out for the best for both parties.
@Laurie you bring up some very good points. There shouldn't be any difference between accommodating a physical disability and a mental one but it is a natural bias to accept what you can see. At least that was my experience growing up dyslexic. I looked and sounded like a perfectly normal/bright kid so the teachers had a hard time grasping the fact that I needed some minor accommodations.
Ultimately it shouldn’t matter if it is a mental or physical disability because (setting aside personal/religious beliefs on the nature of consciousness) it is all physical. It shouldn’t matter what part of the body it effects i.e. the brain. The only thing that matters is if you can do the job with a reasonable accommodation.
We don’t know the job nor the frequency of absences, so it would be hard to speculate on whether or not the request for time off is reasonable. At the very least, some time off should be reasonable.
The white noise is mostly likely a reasonable accommodation, but this as well could depend on a variety circumstances. Would this accommodation have an impact on your coworkers. Do they have the space/ability to move you to an area where it wouldn’t impact other employees. Do you have a job where it would be appropriate for you to wear headphones. Also be prepared for them to provide an alternative such as a white noise generator.
A request for written instructions for all assignments is not likely to be considered reasonable. Of course the instructions should be clear, but that is highly subjective. As an adult in the workplace, if you don’t understand an assigned tasked, I would expect you to ask for clarification.
Depending on the nature of your job and the frequency of the breaks, altering your work day may or may not be reasonable.
Great tutorial! Very informative in how well worded and descriptive you were! You know they say that if one knows how to describe what they want really well, then life is just as good as how you describe it :)
Its great for people who feel like time is running against them and then land on your blog and feel like a whole burden was just lifted off of their shoulder.. I admire and respect people who take time to make it easier for others.. Thanks a bunch! :)
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