Employers may be able to make allowances for people returning to the workplace who have pandemic-related mental health challenges. (Shutterstock)

Employers may be able to make allowances for people returning to the workplace who have pandemic-related mental health challenges. (Shutterstock)

There are options for pandemic-stressed workers

Employees may seek mental health accommodations post-COVID

This week’s question comes from Lenora: Before COVID-19 hit, I felt extremely stressed out at work and pushed to my limits emotionally, to the extent that I believed I might have an anxiety disorder. I regularly experienced panic attacks, feelings of dread and trouble concentrating, but never spoke to a medical professional about it. Unfortunately, working from home during the pandemic presented its own challenges. I have had anxiety around the virus itself, plus juggling a high-pressure job while caring for two young children attending school on Zoom. I think my symptoms are worse now than before the pandemic. I worry about how I will readjust once I am asked to physically return to the office and how my anxiety will affect my performance. Do I have any options that might ease my return to work?

Dear Lenora: Thank you for writing about this important and personal issue. Certainly the pandemic can be described as a global traumatic event that has created unique stresses on many, including the exacerbation of preexisting mental health conditions. This is particularly acute with working mothers such as you who struggle with mental health.

It is important to first understand that the general stress and anxiety we all feel from time to time regarding work, family life and yes, even the pandemic, does not constitute a disability under California law. Anxiety disorders, depression and related mental health conditions, however, can constitute disabilities under the law. If your employer employs five or more persons and if you are found to be a qualified person with a disability under the Fair Employment and Housing Act (Cal. Gov. Code § 12900), you are entitled to reasonable workplace accommodations to help you perform your job. To be a “qualified person with a disability” you must meet the skill, experience, education and job-related requirements and be able to perform the essential functions of your job with or without a reasonable accommodation.

If you are found to have a mental health condition that affects your ability to perform your essential job functions, it is important to place your employer on notice as soon as possible if you wish to explore workplace accommodation options. Any notice and request for a workplace accommodation should be in writing when possible.

Once an employer receives the notice, the California Fair Employment and Housing Act requires the employer to engage in an interactive process with the employee to explore reasonable accommodations that would assist the employee in performing the essential functions of their job. The key word there is reasonable. What is considered reasonable? After the year we’ve just had, the answer to that question is not as clear as it once was.

The most evident shift is the work-from-home arrangement. Statewide regulations surrounding the COVID-19 pandemic have forced the hand of employers to experiment with work-from-home arrangements. Some businesses floundered, some thrived and others simply course corrected. Every job environment is unique, and every employer has had to adapt to the pandemic in its own way.

While working-from-home accommodations may have been unfeasible in early 2020, they may now be considered a more reasonable option if an employer was able to successfully adopt a work-from-home business model. Work-from-home options post-pandemic will not be feasible for all businesses, however, and you should not assume a work-from-home accommodation is necessarily a reasonable one for your employer. Employers cannot be forced to extend accommodations that would cause their business to suffer undue harm or significantly disrupt their operations.

While working from the home part or full time might be an option for you, reasonable accommodations can take many other forms. It may take experimenting with different reasonable accommodations before you and your employer settle on one or more that work best for both of you. Common accommodations for mental health disabilities may include flexible scheduling, intermittent leave for the employee to attend health appointments, frequent breaks, removal of distractions, a task reminder system, and/or a quieter work environment.

While you can suggest reasonable accommodations unique to your situation during the interactive process, employers are not obligated to grant every accommodation you might propose. It can often be more difficult to find a workplace accommodation that works for both the employer and the employee when dealing with a mental health disability as compared to a physical disability, so it is important to stay flexible and open-minded when engaging in the interactive process.

It is also important to know that, while it may elect not to, your employer has a right to request medical authorization from your health care provider, which should indicate what medical restrictions you have. This will assist your employer in determining what accommodations can or cannot reasonably be accommodated. The interactive process is a two-way street, and both parties must engage in good faith. If you find your employer is willfully ignoring your requests for reasonable accommodations, refusing to engage in the interactive process or creating unnecessary obstacles for you during the interactive process, contact an attorney to fully understand your rights.

Christopher B. Dolan is the owner of the Dolan Law Firm, PC. Vanessa C. Deniston is a senior associate attorney in our Oakland office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to help@dolanlawfirm.com. Our work is no recovery, or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

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