The Law: How to deal with employee depression and work restrictions

Depression has become one of America’s most costly illnesses.

Depression is estimated to cause 200 million lost workdays each year at a cost of up to $44 billion to U.S. employers, according to the Society for Human Resource Management, citing a Centers for Disease Control and Prevention study.

Moreover, an employee does not have to be physically absent to be non-productive.

“Presenteeism,” in which employees show up for work but are unable to focus or perform to the employer’s standards, also takes its toll on productivity AND on other team members.

Finally, people with depression often experience greater stigma for their illness because of misconceptions about its causes and treatments. Many people think that depression is due to personal weakness or otherwise is not a real health condition. They are wrong.

Depression is a recognized illness that requires treatment, and may also constitute a “ mental impairment” disability under state and federal law if it “substantially limits” one or more major activities under the 2008 Amendments to the Americans with Disabilities Act.

How to handle

In many cases, the first piece of information an employer receives about an employee’s medical condition, especially for depression or other mental illnesses, is a note from a doctor that outlines some type of restriction, such as “James must be off work this week due to stress and should be moved to a different department upon return.”

Must an employer follow the doctor’s recommendation? What if the recommendation is vague? What if following the recommendation precludes the ability for the employee to stay in their current role?

How can an employer meet their Americans with Disabilities Act requirement to provide reasonable accommodations for a disabled employee when the requested accommodations seem anything but reasonable?

The problem is that ambiguous information and/or imprecise work restrictions impede an employer’s ability to complete what is called “the interactive process” — or discussion — even when the employee has a genuine disability to contend with.

First, the employer is entitled to know something about the claimed disability. Second, the employer needs sufficient information about the essential job functions that are impacted.

Legally sufficient?

The following restrictions are not legally sufficient for engaging in an effective, interactive process:-

“Bill can’t work with Amy” or “Please remove her from untenable supervisory situation” or “Holly would benefit from a change in environment” or “Kelly should avoid dealing with contentious, unreasonable or otherwise exasperating members of the public.”

Why are they legally insufficient? They are too vague.

For example, in the last comment above, who defines an “exasperating member of the public?” What qualifies as contentious rather than simply a customer who has a complaint? How can an interactive process be structured for this situation? Short of removing the employee from any job tasks that deal with any member of the public, how can an employer accommodate this situation?

That leads to the second problem. These types of restrictions are often overly broad, and conclusionary, making them ineffective as a work restriction.

Define job’s functions

What should an employer do when faced with such a request? The key lies in the position’s essential functions.

The employer needs specific, unambiguous medical/work restrictions that address the job’s essential functions and are expressed as functional limitations and restrictions rather than the ultimate desired accommodation.

In this situation, it is best to provide the job description with a list of essential functions to the medical provider so that the medical provider has something specific and realistic from the employer to base work restrictions on.

Additionally, employers need to look at some of the requested restrictions and address the underlying issues.

For example, if a change in department is requested, why would a change to a different department or supervisor make a difference? The employee must work with their health care provider to be clear: “What is it about this department? What is it about this team? What is it about this work group?”

Personality conflicts are not enough to trigger a duty to reasonably accommodate. Accordingly, the key for an employer in this situation is to move from a generic accommodation request to identifying a more specific medical diagnosis that explains the essential job function limitations.

A checklist

Here is a checklist of some possible reasonable accommodations for an employee with depression. Not all will be reasonable in every situation, but this is a start.

Allow flexible scheduling; reduce distractions (for example, reduce noise or remove from an open work environment); increase natural lighting or provide full spectrum lighting; consider work from home/telecommuting; provide flexible breaks and introduce stress management techniques; provide a goal-oriented workload with clear expectations and written checklists; provide a job coach or mentor to work with the employee; and allow additional training time.

Remember that this is an individualized analysis. An employer could have two employees with the same type of depression, one of whom can be accommodated and the other who can’t because of a difference in the nature of their job, for example.

Other options also exist.

For example, many employers provide enhanced mental-health benefits through their employee assistance programs. Especially after the pandemic, many employers also expanded their health insurance benefits to include mental and emotional support, including counseling sessions.

Employers also began waiving behavioral health copays for many employees so that more people could get help for mental health concerns. In doing so, many people with depression obtained reasonable accommodations and continue to be productive at work.

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com