Recent years have seen a heightened societal awareness of mental health issues. Members of the restaurant industry in particular have begun to recognize a mental health crisis within their ranks.
As workers’ mental health issues gain greater awareness, restaurant employers should be aware of their employees’ rights related to mental health diagnoses and employers' responsibilities in these situations.
The Americans with Disabilities Act (ADA) has long prohibited employment discrimination against those with disabilities when it comes to hiring and employment. A mental impairment or mental health issue that substantially limits someone's major life activities, such as working, can qualify as a disability under the ADA. An employee is also protected under ADA if she has a record of a mental impairment. As an example, if an employee has recovered from a mental illness or is perceived by her employer as having a mental impairment – even if she is not actually suffering from a mental health condition – she could be considered eligible for coverage under the ADA.
Employees with mental health issues qualifying as disabilities are entitled to reasonable accommodations under the ADA. In addition to having a qualified disability, the employee also must be otherwise qualified to perform the job in question. To be “otherwise qualified” means that the employee has the skills, experience and education and meets the other requirements of the position, including being able to perform the essential functions of the job, with or without a reasonable accommodation.
For example, if a person with mental health issues but no kitchen experience applied for the position of executive chef, he would not be “otherwise qualified” for the position, regardless of his disability. However, if a qualified employee is prevented from performing the essential functions of her job because of her disability, the restaurant owner must consider whether the employee could perform the job with a reasonable accommodation.
The employer’s duty to provide a reasonable accommodation to a disabled person is only triggered once the employer becomes aware of the condition. This usually occurs when the employee notifies the employer of her impairment and requests an accommodation. If the employee does not suggest an appropriate accommodation, then the employer and employee should work together to identify a reasonable one.
Importantly, if the employee does not request an accommodation, generally, the employer is not obligated to provide one.
In the case of mental health impairments, the condition is rarely obvious to the employer. Particularly where mental health issues are concerned, the employee’s condition may impair her ability to know of or effectively communicate a need for an accommodation, even if the need for an accommodation is obvious to the employer.
For example, a server notifies her manager that she has an anxiety disorder and, thereafter, experiences a panic attack at work. While the employee did not request an accommodation, the employer’s knowledge of the condition and observation of the symptoms will likely trigger the employer’s duty to provide an accommodation or determine if a reasonable accommodation exists.
The employer’s duty to accommodate is not unlimited, and not all disabilities can be accommodated. An employer is not required to provide an accommodation if it would impose an undue hardship on the employer’s business. In general, a larger employer with greater resources, such as a nationwide restaurant chain, would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer, a single restaurant, with fewer resources.
Employers should establish policies that advise employees of their rights and encourage employees to notify their employers if they believe they have a mental health issue impacting their work performance and to have an open dialogue.
Susan Warner is an attorney with Nelson Mullins Riley & Scarborough in Jacksonville, Fla. She counsels employers on employment matters and litigation.