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Finding creative solutions within the law


Sometimes employers must think creatively — but within the confines of the law — to help employees with major depression or bipolar disorder remain productive on the job.

Under the Americans with Disabilities Act, employers are obligated to make “reasonable accommodations” for employees with disabilities who request help.

Though the law doesn’t list specific mental health conditions as a disability, an employee who is substantially limited in a major life activity due to depression is protected from job discrimination under the ADA.

Major depression can significantly interfere with an individual’s thoughts, behavior, mood, activity and physical health. Someone with bipolar disorder may shift between manic and depressive states.

Depression can make it difficult to fall asleep, wake up and focus on tasks. But not every person with depression will require the same, or even any, accommodations.

“The thing that employers have to understand is depression’s really individual,” said Beth Loy, a principal consultant with the federal Job Accommodation Network, a service of the U.S. Department of Labor’s Office of Disability Employment Policy, in Morgantown, West Virginia.

About 45,000 employers annually contact JAN for free technical assistance related to job accommodations and the ADA. Roughly 13% of the calls concern a mental health condition.

Over the years, Ms. Loy has seen a shift in the types of inquiries to JAN. Employers used to ask whether an individual is covered under the ADA. Today, they want to know the ins and outs of the accommodations process, what questions they may ask an employee and appropriate accommodations, she said.

Consultants such as Ms. Loy help employers brainstorm creative solutions, such as flexible work arrangements or work environment changes. Would a white noise machine help drown out distractions? Would moving to the sunny side of the office reduce an employee’s fatigue?

One big mistake that employers make is “being too literal about what constitutes a request for reasonable accommodation,” said William Goren, a Decatur, Georgia-based ADA legal consultant. The employee does not need to cite the ADA. There are no “magic words required,” he said.

Lawrence Postol, a partner and litigator in the labor and employment law practice of Seyfarth Shaw L.L.P. in Washington, recalls a case involving an employee with depression who wanted to work from home. But the employer’s psychiatrist suggested a reasonable alternative for battling fatigue would be to take 10-minute rest breaks at her desk.

Switching supervisors generally is not considered a reasonable accommodation, Mr. Postol said, citing repeated court rulings.

“At the end of the day, you’ve got to perform the essential duties of your job,” he said. “And the courts have found that one essential duty of your job is working for the supervisor you’re assigned to.”