How do mental illnesses and disability regulations interact? When can a mental illness be considered a protected disability under the ADA? Medically speaking, the term "mental illness" describes a plethora of mental and emotional disorders ranging from mild anxiety to more serious conditions that significantly interfere with major life activities such as learning, working, and simply communicating with others.

Legally speaking, "mental illness" isn’t quite as easy to define, yet employers are expected to reasonably accommodate employees who fall into this ambiguous category. As such, employers face critical issues such as how to identify mental disabilities, how to reasonably accommodate those who have mental illnesses, and how to respond to employees who are in a fragile state without giving rise to a disability discrimination claim.

The Prevalence and Costs of Mental Illness and Disability

"Mental illness is a terrible problem for the individuals who suffer from it. In fact, major depression is the leading cause of disability in the United States for individuals who are aged between 15 and 44. There’s an estimate that nearly 26 percent of American adults suffer from a diagnosable mental disorder on an annual basis. Serious mental illness is experienced by 6 percent of American adults—with the result that you might see as much as $193 billion in lost earnings on an annual basis." Susan G. Fentin noted in a recent BLR webinar.

With such a high prevalence, the costs add up very quickly – both personal costs and costs to employers. "Lost productive time due to depression is estimated at $31 billion annually and behavioral health issues lead to 217 million missed workdays annually. There also are significant impacts on productivity losses due to presenteeism, which is when somebody is there and not actually working at their peak capacity." Fentin explained.

This can be especially perplexing for employers because mental illness often goes undiagnosed, untreated, or simply undisclosed to the employer, making accommodations unlikely.

Special Problems Presented by Mental Illness and Disability

How can employers avoid adding to that statistic? In other words, how can an employer deal with an employee’s mental illness and disability accommodations that such an illness requires without incurring unreasonable costs or lost productivity? This question is actually quite complex because mental illnesses present special problems that are not inherent to other disabilities.

Here are some of the problems presented by mental illness:

• Employees are often reluctant to ask for help. This not only means the root problem won’t be identified as quickly in the workplace, but it also often exacerbates the issue because of the added stress of non-disclosure.
• Symptoms are harder to identify. An employee may not even realize they are suffering from a mental illness when in fact they are.
• Accommodations can be more difficult for employers. Finding a way to allow the employee to perform the essential functions of the job while not creating an undue hardship on the employer can be difficult.
• The irregular nature of illness often results in inconsistent performance. Since mental illness tends to be more subtle in its presentation, it may be more difficult for the employer and employee to attribute inconsistent performance to such an issue.
• The side effects of medication taken for mental illnesses can cause separate problems for both the employee (and the employer).
• Malingering and exaggeration are more difficult to prove in an emotional illness. While mental illness is clearly within the definition of disability, it is also an illness that is more difficult to prove. An employer, for example, may fear that someone could falsely claim mental illness as an excuse for behaviors or as a reason to request special treatment.

What happens when you want to discipline someone with a mental illness that may qualify as a disability? See our related article on discipline and mental illness.

For more information on handling mental illness and disability accommodations in the workplace, order the webinar recording of "Depression and Other Mental Illness Under New ADA: Accommodation Practices for HR." To register for a future webinar, visit http://catalog.blr.com/audio.

Attorney Susan G. Fentin is a partner in the labor and employment firm of Skoler, Abbot & Presser, P.C. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.