![]() ![]() Other potential accommodations may be considered, such as having the supervisor provide written instructions/guidance to the employee instead of verbal interaction. One difficult issue is whether an employee with a mental disability can demand a different supervisor as an accommodation. Because the law is not well settled on that issue, experienced legal counsel should be consulted if the employer is not willing to do so. Thus, the employer may be required to reassign non-essential job duties, change an employee’s work schedule (such as to accommodate mental health treatment), allow an employee to work from home, etc. An employer’s duty to provide a reasonable accommodation for a mental disability is the same as for a physical disability – an accommodation is required if it permits the employee to perform the essential job duties of his/her job (or an alternative open position for which the employee is qualified) and does not create an undue burden to the employer. Employers should document the interactive process, even if it is simply a meeting with the employee to inform the employee that the accommodation requested will be provided. The employer should have someone experienced in this process meet with the employee to determine, with the employee’s assistance, the job-related limitations and how they could be mitigated with a reasonable accommodation, identify possible accommodations, and assess the effectiveness of those possible accommodations. ![]() Once an employer knows of the need for an accommodation, the employer has a duty to engage in the interactive process to determine whether a reasonable accommodation can be provided. The employer may ask for a description of how the employee’s limitations impair the ability to perform the essential duties of the job, whether these limitations are temporary or permanent, and if temporary, when they are expected to end. The employer may ask for verification that the employee has a disability (but not the diagnosis), which in California includes a mental or psychological disorder or condition that limits a major life activity (including working), or any other mental or psychological disorder or condition that requires special education or related services. When an employee’s disability or need for accommodation is not apparent or known to the employer, the employer may request a certification from a healthcare provider verifying that an accommodation is needed. While an employee may volunteer his or her condition, the employer and its representatives should never ask for a diagnosis or any specifics about the condition that do not relate to the need for accommodation/leave, including on any medical certification forms used by the employer. Employers have a duty to prevent discrimination and harassment based on disability, including mental disability, and making sure that employees avoid stereotypes and improper comments about mental health issues is the first line of defense in preventing such claims. Comments that an employee is “faking it,” is “soft” for not being able to cope, etc. However, it is still important to remind everyone that mental health disabilities are no different under the law than physical disabilities. As society is becoming more open about mental health, stereotypes about persons dealing with mental health issues are becoming less prevalent. ![]() Here are some quick tips for dealing with mental health accommodations: Whether it is depression from being isolated while working from home, stress from being short-staffed during COVID-related leaves, or anxiety from facing an employer mandate to return to in-office work, when a California employee raises a mental health concern, there are many issues the employer should keep in mind. Most recently, there has been a major uptick in employee requests for accommodation for mental issues such as depression, stress, and anxiety related to pandemic issues. ![]() While California’s COVID-19 State of Emergency is set to end on February 28, 2023, and California’s Supplemental COVID Supplemental Sick Pay has already sunsetted, the effects of the pandemic continue to impact California employers. ![]()
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