By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 11: The Duty to Accommodate Mental Health Issues
This article is the 11th in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the next two to three months, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering all also going to be addressed in detail in an upcoming book we’re publishing: Helping the Injured or Disabled Member: A Guidebook for the Washington Law Enforcement and Fire Union Representative. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 11th article in these newsletter series provides an overview and introduction to the rights of accommodation under disability laws. For more information, visit our Premium Website. On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Public safety employees, like any other employee, can have mental health issues. Constant stress can aggravate these issues and ultimately affect their ability to perform. In such cases, employees will be entitled to the protection of the disability discrimination laws to the extent that these issues can be reasonably accommodated.
Mental illness is certainly a protected disability, but so are other forms of less severe mental health problems, such as post-traumatic stress disorder (PTSD). As with other disabilities, courts have wrestled with the extent of an employer’s obligation to accommodate these situations.
Typically an employee seeking an accommodation has the burden to come forth, make the request, and identify the circumstances warranting it. But due to the nature of mental health issues, here the burden is different. The case law has been clear in defining a special accommodation obligation for employers in connection with mental health issues: Where an employee has a mental health problem which impedes their ability to recognize and request assistance, courts have imposed a burden on the employer to act unilaterally to begin the interactive process of identifying an accommodation.
In the next article in this series, we’ll explore the law of disability discrimination as it relates to physical fitness tests.
