Shira M. Blank, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in Law360 Employment Authority, in “4 Tips as EEOC Takes Aim at Surging Mental Health Claims,” by Vin Gurrieri. (Read the full version – subscription required.)

Following is an excerpt:

Claims of mental health-related disability bias have been rising for years at the U.S. Equal Employment Opportunity Commission, and the EEOC has recently been vocal about its desire to protect workers with mental health issues. ...

"It's no surprise that the EEOC is seeing this as an issue that it wants to tackle and that we're seeing more charges and litigation relating to mental health," said Shira Blank of Epstein Becker Green PC.

"COVID-19 exacerbated mental health disorders for many employees because they were dealing with prolonged isolation, health concerns, economic hardship, and uncertainty," Blank added. "Research is also showing that the rates of mental health disorders have risen significantly since the start of the pandemic and haven't declined. And with everything that's going on in the world, I think that these issues are continuing to increase." …

Don't Forget About Applicants

As stigmas about mental health fade away, people are becoming far more willing to speak openly about mental health issues, Blank said.

That openness is good in that it creates a supportive environment in which workers are reassured that they aren't alone in facing those issues. But it also puts an onus on companies to understand that a worker who identifies themselves as having a disability may need an accommodation — even if they aren't an employee at all.

"We're seeing disclosures happening at all stages of the employment life cycle," Blank said. "An example that we hear pretty frequently is somebody saying, 'I am going to be interviewing for this job. I just want to let you know that I am on the autism spectrum, and so I want the interviewer to be aware of that. I may not be making eye contact that frequently, but I'm still qualified and able to do the job and I just want you to know this.'"

At that point, employers are on notice of their disability and need to take it into account as they consider if the person is able to do the job.

"In terms of avoiding risk, the first rule of thumb I would say is, 'No accommodation request or disclosure of any mental health disorder should ever be dismissed or ignored,'" Blank said. "Even if the manager or HR believes that it's not necessarily credible, they should always be having a back-and-forth dialogue to understand the request." …

Make Sure Managers Are Up to Speed

[Blank] of Epstein Becker Green [noted that] the often invisible nature of mental health disabilities doesn't absolve employers of their ADA obligations.

Training managers can pay dividends if those managers realize they can take initiative and use their own observations to objectively identify instances where an accommodation may be in order, Blank said.

For example, if a manager hears an employee complain that an office with an open floor plan is too noisy for them to concentrate, it may be a signal that the interactive process should be initiated.

And just because two people may have a similar mental health condition, that doesn't mean it affects everyone the same way, so employers want to avoid standardized accommodations.

"You always want to make sure that you're conducting an individualized inquiry because even if two people have the same condition … the same accommodation may not be appropriate," Blank said. "So the most important thing that employers can do to get ahead of everything is to make sure that staff who are dealing with employees, managers specifically, are trained to understand when somebody is disclosing a disability."

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