The ADA and mental health: Who is covered and how to accommodate

The Americans with Disabilities Act (ADA) provides broad protections to employees with many different kinds of impairments that can make it more difficult to be successful at work. While most experienced managers and human resource professionals are familiar with the way the ADA applies to physical impairments, translating that knowledge to apply to mental health conditions can be trickier but is necessary.

According to a press release from the American Psychological Association reporting on the results of its 2023 Stress in America surveys, mental health conditions have increased across almost all demographics in recent years. Among adults ages 35 to 44, mental health diagnoses rose from 31% as reported in 2019 to 45% in 2023. The most impacted group is adults ages 18 to 34, reporting the highest rate of mental illnesses at 50% in 2023. These increased diagnoses inevitably correlate with an increase in requests for workplace accommodation under the ADA.

Who qualifies under the ADA?

Not every mental health condition will qualify as a disability under the ADA. The ADA defines a person with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activities. This includes people who have a history of such an impairment or who are perceived by others as having such an impairment.

Mental health conditions such as anxiety disorders, depression, attention-deficit/hyperactivity disorder (ADHD), bipolar disorder and schizophrenia are covered under the ADA. The condition must substantially limit one or more major life activities to be considered a disability. What that means is that a diagnosis alone is likely not enough to know whether an employee is covered by the ADA as it will depend on how the condition impacts that particular individual. Generally speaking, however, it is not a high bar to demonstrate that a mental health condition does limit a major life activity. As a result, employers should be cautious not to dismiss an employee’s condition simply because it does not seem severe enough to qualify under the ADA.

Accommodations for those protected by the ADA

Once an employee has notified their employer of a need for an accommodation, the employer and the employee should begin a conversation about what kinds of changes could reasonably be made to the employee’s work environment to ensure that the employee can be successful in their role. The conversation is referred to as the interactive process, and the goal is to determine what accommodations would meet the employee’s needs without imposing too much burden on the employer. Employers do not have to provide the exact accommodation the employee requests but must provide reasonable accommodations to qualified individuals with disabilities. This may include modifications to the job application process, the work environment or the way a job is performed, as long as it does not impose an undue hardship on the operation of the business.

Accommodations can also include time away from work – whether to attend doctor appointments periodically or to take an extended leave of absence to focus on treatment. An employee who asks to work from home as an accommodation for a mental health condition that makes it difficult to be near crowds may instead be permitted to work in a private office or in a part of the employer’s worksite that is less crowded.

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The ADA also requires that all disability-related information be treated as confidential. Employers may only disclose this information to those who need the information. This can range from human resources staff to supervisors, managers, first aid and safety personnel and government officials investigating compliance with the ADA. Keeping the confidentiality of the employee’s information is especially important with mental health conditions, most of which are not visible or known to others without the employee’s disclosure and may carry societal stigma.

Addressing safety concerns without impeding ADA rights

While most individuals with mental health illnesses are neither violent nor a safety risk, employers can address safety concerns when necessary without violating the ADA by assessing whether an individual poses a “direct threat” to the health or safety of themselves or others. This assessment must be based on objective, factual evidence, not on stereotypes or assumptions. The assessment should consider four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur and (4) the imminence of the potential harm. In addition, an employer must determine whether the potential threat can be reduced or eliminated through the implementation of some type of reasonable accommodation.

As awareness of mental health conditions and treatment continues to grow, so too will workplace requests for accommodations. Each request should be evaluated individually while engaging the employee in a cooperative, respectful and interactive process to determine a solution that will work for both employer and employee.

Laura Balson is the managing partner of Constangy, Brooks, Smith & Prophete’s Chicago office and co-chair of the firm’s Whistleblower & Retaliation practice group. She has broad experience counseling and advising employers across industries and litigating on their behalf when necessary.