I have written in the past about the surge in mental health issues, such as depression, anxiety, and even suicide.  We have also seen a growth in the diagnosis rate of those with OCD (obsessive compulsive disorder) and bipolar disorder.    The diagnosis rate for developmental disabilities such as ADHD has also been rising.   The autism rate has skyrocketed in the last 30 years, from when my daughter was diagnosed.   

Some of this increase has been due to a higher incidence rate and some to better diagnostics.   In many cases, it’s a combination of both.   Regardless, the recent climb in these occurrence rates has led to enhanced attention to the topic, for good reason.   However, as with use of the term “hostile environment,” increased attention can cause abuse of the label.    I will discuss attending to both trends, below.

Both federal and state law require employers to provide reasonable accommodations to employees with physical or mental disabilities to perform the essential job functions unless the accommodation would cause an undue hardship.   The California Civil Rights Department lists the following as examples of reasonable accommodations:

• Changing job duties
• Providing leave for medical care
• Changing work schedules
• Relocating the work area
• Providing mechanical or electrical aids

Note, providing a medical leave to an employee who is not yet qualified for a leave under state or federal FMLA, or providing an extension to the 12 weeks, may be considered a form of reasonable accommodation. 

Under both California and federal law, once an employer becomes aware of the possible need for an accommodation, the employer must initiate a timely, good faith, “interactive process.”  The awareness might emanate from the employee’s own request, but it also might be triggered by observation or simply because the employee has run out of leave time.

Also understand that the courts and agencies do not define the defense of “undue hardship” the same way that most employers do.  For example, I often hear “but that would set a precedent” or “but that wouldn’t be fair to other employees.”   And I point to the story that many of you may remember about Casey Martin.  Casey Martin was a professional golfer, and back in 2001, he challenged the PGA to be able to use a golf cart during competitions, because he had a disability that prevented him from being able to walk the course.  The United State Supreme Court ruled that using the golf cart was an example of a reasonable accommodation that permitted him to play when he otherwise would not be able.  Many outraged golfers screamed that it was not fair to the other competitors.  My response at the time, as it is now, is that Casey Martin would much rather have been able to walk the course.  He could not.    This accommodation removed the barrier that prohibited him from participating.

Many understood and agreed with the Supreme Court because they did not doubt that Martin had a real disability that prevented him from walking.  We see people in wheelchairs or with white canes and recognize those as disabilities.  But mental and developmental disabilities are harder to discern.   I recall a birthday party we attended when my children were young, and one of the attending adults chastised my daughter to “come help, you’re one of the big kids.”   We were attending a party for my son and his friends, who were four years younger.  Little did this mom know that my daughter could barely speak at that age, and developmentally, she was younger than the kids who were four years her junior.   To the outside world, she appeared like a typical peer of her age. 

Mental and developmental disabilities are often hard to see.   But they are real.  And they require accommodations and the same need to engage in the interactive process as other disabilities.   But that process is complicated with these types of disabilities, made all the more challenging when employees are not immediately forthcoming about the need. 

Keep in mind that employees may well not disclose a mental or developmental disability for a variety of legitimate reasons.  First, it may be that they do not believe it would be an impediment to performing the essential job functions.  Second, it may be a newly diagnosed condition for them.  My daughter has had the autism diagnosis since 1994, but adult onset of depression or anxiety is common.   And often, adults are diagnosed later with disorders such as ADHD.   Finally, sometimes the job duties change and require a new skill or additional task.   Or it may be that we, as employers, were not transparent about all the job functions upon hire.  How many of you attach a job description or list of essential job functions to either an application or offer letter?

Because of all these factors, employers are often suspect when employees suddenly invoke a new diagnosis during employment.   And like anything, that suspicion is heightened when the diagnosis comes in response to performance criticism.    It does not help when employees provide a detailed analysis of their supposed diagnosis along with an AI enhanced recitation of the employers’ legal obligations under federal and state law.  

I saw a meme recently that chided the current generation’s overuse of “labels.”   It joked that not everything is “trauma,” and not every event is “triggering,” nor is every unfavorable experience “abuse.”   I found myself chuckling at the meme, in response to what so many of my clients see from their employees.   And yet, some people legitimately suffer from trauma.   And some situations rise to the level of abuse.   How do we know when a label is legitimate? 

Of course, as I started out this article, we have the same dilemma with the labels of harassment and hostile environment.   Those terms have absolutely become overused and abused.   And yet, it does not mean we still do not see legitimate circumstances of unlawful harassment occurring in the workplace.  

As employers, it is our job to review the circumstances and engage in a good faith investigation.   As I tell my clients, timing is everything, so when an employee presents a new label in the middle of a performance review or even after a termination, it is often suspect.   Using ADHD as an excuse for slugging a co-worker feels inappropriate.    But we must objectively investigate the circumstances where the diagnosis is presented, engage in the interactive process, if warranted, and provide a response.   In this case, for example, you most likely do not have to reasonably accommodate violence in the workplace.  

The process of engaging in this interactive dialogue, just like investigating claims of harassment, is not something I recommend you try at home without the assistance of an expert.   Reach out.   We have forms and letters that we customize to help you navigate this maze.  This is what we do. 

Remember, documentation is key.  Our employees have become adept at using ChatGPT to help them draft excruciatingly long, overly complicated, and sometimes legally inaccurate correspondence.   We can help you draft an appropriate, and legal, response.