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Tennis player Naomi Osaka’s withdrawal from the French Open late last month highlights employment-related mental health issues.
Ms. Osaka, ranked No. 2 in women’s tennis at the time, had cited depression and anxiety for her decision not to participate in a news conference following her first-round match — as required by tournament organizers. She withdrew from the Grand Slam tournament after being fined for her decision.
Employers increasingly are wrestling with how to accommodate workers with mental health concerns as offices open following the rise in people being vaccinated against COVID-19, experts say.
Employers should engage in an interactive process with their employees to reach an accommodation with those who claim to have mental health issues, as required under the Americans with Disabilities Act, they say.
Ms. Osaka is not a French Open employee, and the ADA is not applicable in France, but the issues involved reflect those that arise under the ADA.
The legislation, which was passed in 1997 and applies to employers with at least 15 employees, requires employers to make a reasonable accommodation to employees who report a disability if it does not impose an “undue hardship” on their business.
A qualified employee or applicant with a disability is an individual who, with or without reasonable accommodation, can perform the job’s essential functions, according to the law.
In Ms. Osaka’s case, experts question whether news conferences should be considered one of a tennis player’s essential job functions. “It’s not like she was asking for longer breaks between sets or games,” said plaintiff attorney Douglas Wigdor, founding partner at Wigdor LLP in New York.
French Open organizers have said they tried to engage with Ms. Osaka several times before she withdrew from the tournament.
Experts question, though, whether an effort could have been made to accommodate Ms. Osaka, such as by allowing her to take part in just a one-on-one interview or other accommodation.
“It’s important that the employer go through the interactive process and talk to the employee about any array of accommodations that might exist and explore them with her or him,” said Eric Meyer, a partner at FisherBroyles LLP in Philadelphia.
“They should have done more in terms of the interactive process,” said Paul E. Starkman, an employment lawyer and a member of law firm Clark Hill PLC in Chicago. “There seemed to be a lot of accommodations that could have been made here.”
The interactive process under the ADA is intended to be collaborative, and not adversarial, although “the employer gets to choose what is going to be the reasonable accommodation,” said William D. Goren, a Decatur, Georgia-based attorney and ADA consultant.
Employers may be receptive to requests from employees seeking an accommodation because of mental health issues. These workers are less stigmatized today than they were 10 or 20 years ago, when they may not have come forward to engage in the interactive process, said Mark S. Goldstein, a partner with Reed Smith LLP in New York.
Mental health concerns are arising as people return to the workplace after the pandemic, Mr. Starkman said. “You’re seeing some pushback” from employees who say they do not want to come back because it may exacerbate or trigger a disability or may create an increased risk from a pre-existing disability.
“I fully expect that, for a whole variety of reasons, that particularly in the initial return to the workplace, there will be a lot of issues that will arise” and questions that will be asked, some of which will fall within the ADA’s ambit, and require the interactive process, said Frank C. Morris Jr., a member with Epstein Becker Green P.C. in Washington.
But employers are free to distinguish disability from mere stress in evaluating ADA accommodation requests. If stress is an inherent part of the job, “I think you would have to move on to other positions that entail less stress,” said Robin E. Shea, a partner with Constangy, Brooks, Smith & Prophete LLP in Winston-Salem, North Carolina.