For many folks, working from home – since March of 2020 – has taken a huge toll on our health and well-being. For some employees with disabilities, such as ADHD, depression, or anxiety, working at home can be even more difficult. Social isolation and the lack of structure can exacerbate depression, anxiety, ADHD, or other mental health symptoms. It’s not surprising, then, that studies confirm that mental health problems are on the rise during COVID. Some employees are finding it difficult to get through their task list every day, finding their mental energy instead consumed with laundry, cooking, or just lying on the couch staring at the ceiling, contemplating the misery of life in a never-ending lockdown. And that’s not even including the additional stressors caused by childcare insecurity, the secondary stress faced by family members, economic insecurity, or the tragedies wreaked by COVID itself.
This post cannot address every facet of the pandemic’s impact on our lives and work lives. But it does explain how employment law can help those workers working from home for whom the pandemic is causing or exacerbating mental health challenges.
In California, workers are entitled to a “reasonable accommodation” of their disabilities under the Fair Employment and Housing Act (FEHA). If you’ve worked for an employer for a year (part time or more), you’re also entitled to at least 12 weeks of time off for a disability, a medical issue, or to care for someone in your family under the California Family Rights Act (CFRA). If the pandemic stress and isolation has caused you to either acquire for the first time clinically-significant symptoms of anxiety, depression, or another health condition — or has exacerbated an existing mental health condition like ADHD to the point that it impairs your ability to do your job — you have the right to ask your employer for a reasonable accommodation, which can include time off. This right to accommodation is available even if you haven’t been at the employer long enough to qualify for the automatic 12 weeks off. And your employer is required by law to find and implement an effective accommodation unless it’s an undue hardship for the employer. Here are our tips for the best ways to make this ask.
While it’s not required for you to get a doctor’s note first, it can’t hurt. If you can, talk to your doctor – or therapist, or other health care provider. The person need not have an M.D. or a Ph.D. A licensed therapist counts, as does a licensed social worker, a midwife, a nurse practitioner, a physician’s assistant, or an acupuncturist. Talk to someone who has treated you for mental health issues or with whom you’ve done therapy. If you haven’t started, start. There are free and low-cost options for teletherapy. Make an appointment and tell the provider how you’re feeling and the kinds of accommodations that you would need to function at (virtual) work. Do you just need time off? Do you need a reduced schedule? Do you need a daily check-in with your boss so that you don’t feel like you’re slipping into a black hole in which time and space have no meaning? Do you need a special app for ADD or meditation? Do you need a designated “break” time during the day to nap or exercise? Be creative. With your mental health professional, generate a list of things that could help you continue to do your job while maintaining (or recovering) your mental health. Then, ask your doctor, therapist, acupuncturist, or other provider to write a note for you. The note doesn’t need to say your diagnosis. It can say simply that you have a “disability” which is impacting your ability to work. As an accommodation, the letter can say that you are seeking ways to be able to continue to do your job, and the doctor/provider suggests the following ideas (and then list whatever you’ve come up with.)
Then, initiate a conversation with your boss or your HR department. Tell them you’d like to talk by phone or by virtual meeting, and in the conversation, say you are requesting an accommodation for a mental health issue, that you’re flexible and willing to consider any accommodation that works, but you have the following suggestions. Of course, if there’s one clear thing that you know would help, you should ask for that. While it’s certainly not prohibited to tell your company more about your diagnosis, you are absolutely not required to tell your boss your diagnosis or much at all about your disability. What you do need to be ready to talk with your company about are the accommodations you think could help and the ways that your disability limits or interferes with your ability to work.
Here’s the important part: the company has a duty to engage with you in what’s called the “interactive process.” They are supposed to engage in an individualized conversation with you to figure out what they and you can do that would enable you to keep doing your job, despite the mental health limitations you are facing. They do not have to just do what you’re asking for, but they have an obligation to suggest alternatives if what you’re seeking would be too expensive or burdensome for whatever reason. It’s supposed to be a give-and-take. The company may request you to put your request on a special form, or to ask your doctor or therapist to fill out a form. If it is not too burdensome for you, go ahead and do those things. If they don’t follow up with you quickly, follow up with them. Remind them of your requests (ideally in writing) until the requests are granted.
After your initial conversation with your boss or HR, we recommend following up in writing to make clear that you’re requesting an accommodation for a disability and are open to an interactive conversation with the employer to determine which accommodations will work. If you have one, attach your doctor’s note or therapist’s note.
If getting the accommodations you need doesn’t happen promptly or if your employer is not acting in good faith – like making you undergo a long and complicated process, or just denying your request without offering other alternatives – then that might be time to consult an employment lawyer for help navigating this process, so that you can get the accommodations you need. After all, you deserve to survive this pandemic with your job, and your mental health, still intact.