Properly addressing mental health issues in the workplace continues to be a source of confusion for employers and employees. Employees with mental or psychological disabilities and their employers each have rights and responsibilities under the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Act Amendments Act (ADAAA), and state law equivalents. Practical Law reached out to Patti C. Perez of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. for her analysis of mental health issues in the workplace.

Patti is a shareholder in Ogletree's San Diego, California office. She has trained human resources personnel, legal and other professionals, and has extensive experience as an employment attorney and an HR executive. Patti currently serves as a member of California's Fair Employment and Housing Council and was previously a Commissioner on the Fair Employment and Housing Commission. Patti sat on the Commission's subcommittees for drafting both the pregnancy and disability discrimination regulations.

Employees with mental or psychological disabilities have the same rights under the ADA and corresponding state disability laws as those with physical disabilities. This means that qualified disabled individuals, employees who can, with or without reasonable accommodation, perform the essential functions of the job, are protected from discrimination, harassment and retaliation in the workplace.

Also, once the employer learns of a disability, it is required to engage in an interactive dialogue with the individual to determine if a reasonable and effective accommodation is available. Under the ADA, employees have a right to request an accommodation that is reasonable and will effectively remove barriers that inhibit their ability to perform essential job functions.

An employee's mental or psychological disability can manifest itself in the workplace in many ways. In some cases, for example, an employee with a relatively mild condition and few restrictions might only need a slight adjustment to his schedule or to be responsible for fewer marginal tasks. In other cases, the restrictions might be more serious and require a more thorough evaluation of available accommodations. Finally, the restrictions caused by a disability might be so significant that no accommodation exists.

EEOC guidelines and policy manuals and the ADA say that a psychological or mental disability includes any mental or psychological disorder, including major depression, bipolar disorder, anxiety disorders (such as panic disorders, obsessive compulsive disorder and post-traumatic stress disorder), schizophrenia and personality disorder. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5) (now in its fifth edition) is helpful in identifying mental or psychological disorders, though not always controlling.

Often, employers mistakenly place too much emphasis on deciding whether an employee's physical or mental health condition actually constitutes a disability under the ADA. Though this analysis is relevant, employees frequently satisfy the definition "disability" under the ADA, as amended, so company managers and HR personnel may be better served by focusing on the next steps. For example, employers should focus on what restrictions the employee has, whether there is a reasonable and effective accommodation that will allow the employee to perform the essential functions of his job and whether the accommodation would be unduly burdensome to the employer.

When it comes to collecting medical information, employers should proceed with caution. Before a job offer is made, employers cannot ask a job applicant about his medical history or existence of a disability, including a mental disability, or ask questions that are likely to elicit that information. Once an employer has extended an offer, it may require medical examinations or ask questions, as long as the same process is used for all employees in that job category.

In addition, employers can request information through the interactive process, within certain limits, so they can properly evaluate employee requests for accommodation.

To the extent an employer obtains documents or maintains written information with details related to an employee's medical condition, including mental health issues, it should keep that information in a separate, confidential file. Employers should not keep medical information in employee personnel files.

If the employer becomes aware that an employee suffers from a mental or psychological condition, the employer must provide that employee with equal job opportunities and any necessary reasonable accommodation. In some cases, the facts disclosed might be too subtle to require further inquiry. For example, if an employee simply says he is "stressed," this may not trigger the employer's obligation to engage in the interactive process.

If an employee asks for an accommodation, however, or is returning from leave as a result of a disability, employers should engage the employee in an interactive dialogue. The interactive process should involve a mutual exchange of information and include all parties necessary to obtain information about restrictions and essential job functions. This might include participation by the employee's immediate supervisor, representatives from HR or Employee Relations or other professionals who can contribute information that will inform the employer's evaluation of the accommodation request.

A hallmark of a reasonable accommodation is the individual assessment. Employers and employees have a duty to approach each accommodation request with a problem-solving mentality. Each situation, however, is individualized. The analysis involves a particular employee's medical condition, restrictions, job functions, department and employer.

Evaluating a request for accommodation is not a cookie-cutter process. Accommodations should be based on careful consideration of the specific information collected. An accommodation that is reasonable in one situation may not be in another.

Although employers are not obligated to agree to an employee's requested accommodation, they should consider the employee's choice. In some cases, an appropriate accommodation is difficult to identify and employers and employees should be open to creative solutions. Of course, in some cases, a reasonable accommodation is simply not available.

A discussion about reasonable accommodations is not complete without mentioning the employer's burden to provide the accommodation. The ADA and its state law equivalents make clear that an accommodation request that imposes an undue burden on the employer is not a reasonable one. Determining whether the accommodation unduly burdens the employer, however, is a highly fact-specific inquiry.

An accommodation is not adequate if it is not effective. Employers should implement accommodations that take into account the individual's restrictions and the main functions of the job. If the accommodation does not effectively allow the employee to do his job, it is not a reasonable accommodation as contemplated by the ADA. Employers often implement accommodations that fail to match employee restrictions with the essential functions. Similarly, employees sometimes request accommodations that do not effectively address their medical restrictions.

Even in circumstances where the employer and employee agree on an accommodation that is both reasonable and effective, the employer should monitor the situation to ensure that the accommodation continues to work.

The return from leave presents employers and employees with an excellent opportunity to interact. Though "interactive process" is a term of art, it is a process that, when utilized correctly, allows both sides to exchange information in a cooperative manner. The employer should contact the employee to discuss return-to-work options (of course, an employer must be mindful of the reason for the leave and should not bother the employee if, for example, the leave is recuperative leave).

Once the employee is back in the workplace, the employer should work with the employee to see if an additional accommodation is appropriate. The employer should also monitor the workplace to ensure the returning employee is fully supported and is not exposed to any discriminatory or retaliatory behavior. Finally, the employer should decide what information needs to be shared. For example, although most of the employee's coworkers do not need to know about his medical condition, a direct supervisor may need to be involved in the process or made aware of restrictions or accommodations.

The employer should not disclose an employee's private medical or health-related information to his coworkers. The employer also should not indicate that the company has provided the individual with a reasonable accommodation because by doing so the employer might disclose that the individual has a disability. Although it is common for coworkers to seek information, often for legitimate reasons, employers should not disclose this information.

Instead, employers can respond to such inquiries with assurances that any alterations are being made for legitimate business reasons and in compliance with applicable laws. Also, employers should provide policy language in handbooks, as well as training, so employees understand that the employer is limited in the type of information it can share.