By: Matthew R Lowe *
From its enactment in 1990 to present, the Americans with Disabilities Act (ADA) has undergone significant changes in how it is interpreted and applied. Of particular note with regards to these changes is the focus on protection for individuals suffering from disabilities that are not just physical in nature. Now more than ever, with the steady rise of mental health disorders in the U.S., understanding how the ADA might apply to those with mental health disorders is of vital importance. Equally important is understanding how companies can effectively use technology to get ahead of potential liability in this area and yield additional benefits such as employee attraction, employee retention, decreased employee absenteeism, increased labor productivity, increased savings, and increased overall profits.
II. A Brief History of the ADA
path of the ADA from its enactment to present has hardly been a straight line. However, despite its chaotic trajectory, it is clear that the changes to its applications reflect an impending need for employers to address mental health in the workplace more effectively.
When the first version of the ADA was brought before the House and Senate in 1989, there was an immediate issue with branding. Aside from the broad language referencing “disability,” one of its principal drafters, Robert L. Burgdorf, suffered from physical disabilities himself and likely had physical disabilities in mind when putting the bill together. Whatever the root cause, individuals to this day typically associate the ADA exclusively with physical disabilities. Despite this impression, agencies like the Equal Employment Opportunity Commission (EEOC) have clarified that the ADA applies to mental disabilities too. While the term “mental disability” may conjure up the idea of developmental disabilities exclusively, the ADA, in fact, applies more broadly to encompass forms of mental illness that plague approximately twenty percent of the modern workforce. According to the EEOC, these illnesses can include “major depression, bipolar disorder, anxiety disorders (which includes panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.”
Between 1999 and 2008, the Supreme Court, in a series of decisions, gutted the very spirit of the ADA. Both the ADA’s language and the EEOC have correctly acknowledged that “[t]he determination of whether an individual is substantially limited in a major life activity [necessary to gain benefit under the ADA] must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistance or prosthetic devices.” However, in a 1999 case, Sutton v. United Air Lines, the Court stood in direct opposition to these guidelines when it decided to make use of those “mitigating factors” in its pro-employer decision. Then, in a 2002 case, Toyota Motor Manufacturing, Ky. v. Williams, the Court ruled that in order to be “substantially limited in performing manual tasks” under the ADA, an individual was required to have an impairment that prevented or severely restricted the individual from doing activities that were of central importance to most people’s daily lives. In addition, the impacts of those impairments were required to be permanent or long-term. This decision effectively precluded many mental health cases from being litigated under the ADA since these types of illnesses manifest themselves episodically and not a necessarily “permanent” or “long-term” basis. Thankfully, in 2008, eighteen years after George H.W. Bush signed the ADA into law, his son, George W. Bush, signed amendments to the ADA to nullify the impact of Sutton and Williams, and give force to a broad, liberal application of its provisions per the EEOC’s guidelines. Thus, the liberal protections intended to be offered by the ADA were codified.
Further, the ADA has become increasingly accessible for those suffering from “intellectual disability (formerly referred to as mental retardation), organic brain syndrome, emotional or mental illness, and specific learning disabilities.” These new changes have placed mental illness among the fastest growing categories of charges filed with the EEOC over the last few years. Data on legislative trends shows that after the ADA amendments, courts have granted significantly fewer summary judgment rulings to employers based on disability status alone—the percentage of employers who won on summary judgment dropped from sixty percent to fourty percent after the amendment.
III. The Need for Employers to Reform Current Disability Policy
A few things are clear from the ways the ADA has aged over the years. First, the net result of its changes has been favorable to employees, especially those suffering from mental illnesses. Second, the ADA, like any piece of legislation, is living and growing to reflect the changes in modern society. As previously mentioned, one in five employees presently suffer from mental illnesses. As this number steadily rises, the ADA will likely continue to trend toward offering reasonable forms of consideration for these employees. Third, employers need to find a way to be proactive in how to address the changing landscape so that they can continue to focus on daily operations and prevent being caught off-guard by unforeseen liability.
Liability avoidance is attractive for employers because it results in significant cost savings from a litigation standpoint—this is obvious. What may not be so obvious is that the area of mental health in the workplace provides a unique opportunity for employers to yield significant benefits across other variables. Studies have demonstrated a definitive link between mental health and economic productivity to the effect of a four-dollar return on every dollar invested in treating mental health disorders. As of 2015, mental illness has cost U.S. employers around $210 billion annually due to factors including absenteeism and reduced labor productivity. Thus, these types of investments in the workforce are necessary for employers to undertake from a cost-effective perspective. Subsequently, more effective policies would not only permits employers to avoid future liability within the context of the changing ADA landscape, but also has the potential to result in massive financial returns.
IV. Incorporating Cost-Effective Technologies to Proactively and Effectively Address Changing ADA Compliance Requirements
Developments in technology have given rise to cost-effective means of addressing mental health in the workplace. The importance of this for employers is two-fold. First, it better insulates companies from future liability resulting from failure to provide legislatively mandated reasonable accommodations for mentally ill employees. Second, it gives employers flexibility to experiment with new digital technologies at minimal cost. From an economic perspective, this second factor is crucial as the minimized cost of such trials relative to the potential financial benefit makes it an essential no-brainer for employers to explore these solutions and find a right fit for their respective organizations.
As mentioned in Part III, one of the largest costs associated with mental illness is employee absenteeism. This is due to a variety of reasons that range from being physically unable to make it into work as a result of major depression to having to make appointments to treat illnesses. Fortunately, telecommuting offers a simple and mutually beneficial solution. As of 2017, telecommuting is continuing to trend in workplaces nationwide. Two-thirds of managers report that remote work has resulted in increased overall productivity, citing the opportunity that remote work provides for employees to “adjust to their personal mental well-being needs [in ways] that optimize productivity.” Again, not only do employees yield benefits, but as demonstrated from managers’ feedback, productivity increases commensurately. More employees working from home also results in reduced organizational operating costs. Companies like Aetna and American Express have saved between $10,000,000 and $80,000,000 by eliminating the office space vacated by remote employees. For companies seeking to keep offices open for the purpose of promoting collaborative options, even the partial use of office space yields significant cost benefits. Telecommuting also attracts millennial talent as well as reduces employee turnover, which is a huge cost reduction seeing as how the average on-boarding cost for a new employee is around $4,000. A Stanford University study has found that the work-from-home option reduced turnover costs by over fifty percent. Studies have also shown that: seventy-six percent of telecommuters were willing to work overtime and felt more loyal to their company and eighty percent of workers reported an improved work-life balance. Higher rates of work-life balance generally tend to lead to reduced turnover.
Simple technologies also offer opportunities to reduce workplace triggers that can exacerbate pre-existing mental illness. Companies like REI make use of “company campfires,” which are digital forums where employees can share their thoughts and engage in meaningful discussions with leadership—over fourty percent of its employees engage in such discussions. These forums are therefore a healthy outlet where employees can feel more valued and empowered. This also comports with recent trends towards increasing employee engagement, which has been found to increase labor productivity. Studies have found direct links between employees who are engaged with the work they do and increased sales, fewer quality errors, higher retention rates, reduced absenteeism, and higher overall profits. Employee engagement has also been found to meaningfully and positively impact employees’ mental health.
In addition to digital forums, employee engagement and positive mental health initiatives can be facilitated through even simpler and less interactive means. Companies like Colonial Life have explored the rising interest of wellness programs by leveraging app technology like Happster, which is an app specifically designed to promote “workplace happiness” by giving employees a way to provide peer-to-peer recognition, as well as giving managers opportunities to empower teams with real-time feedback.
Perhaps it is too cumbersome for employers to permit remote work options or to promote the interactivity required to successfully utilize tools like company campfires and Happster. Still, reasonable accommodations for mentally ill employees can be provided through telehealth options. As David Reid, CEO of EaseCentral, noted: “[m]ental health doesn’t have a schedule, and it’s often hard to find time in one’s schedule to see a therapist. Offering the option to set up text or even FaceTime sessions entices everyone to keep their mental health in check.” This option also mitigates any discomfort employees may feel if they are forced to otherwise disclose their treatment-related absences to management.
ADA compliance can be tricky, especially because proactive approaches to addressing it effectively can result in liability, since an employer cannot legally pry into an employee’s potential disability. However, employers can be proactive about policies that extend to all employees and result in positive net benefits from labor productivity and profit standpoints. As empirically demonstrated, minimal investments in mental health can result in significant returns. As the ADA landscape changes to reflect the needs of modern society from a mental health context, the modern technology landscape offers numerous cost-effective means for employers to be proactive and get ahead of impending compliance standards.
* Matthew Lowe earned his JD/MHRIR from the University of Illinois in December 2017 and has extensive experience working on labor policy matters for various Fortune 500 companies in addition to advising numerous startup companies. Matthew’s research is at the intersection of law, technology, and labor. Matthew would like to take this opportunity to give a special thanks to his mother and father, as well as his sister, Victoria, and his close friends, Danny and Orko, for reading through the article and providing solid feedback. He would also like to thank Professors Kenworthey Bilz, Ariel Avgar, and Suja Thomas for their infinite wisdom, kindness, and support. And lastly, he would like to express gratitude to Donald Zheng and the rest of the JLTP board for providing this awesome chance to write about something meaningful.
 Robert L. Burgdorf, Why I Wrote the Americans with Disabilities Act, Wash. Post (Jul. 24, 2015), https://www.washingtonpost.com/posteverything/wp/2015/07/24/why-the-americans-with-disabilities-act-mattered/.
 Margaret E. Vroman, Mentally Disabled Employees and the ADAAA: What’s an Employer to Do?, 16 Quinnipiac Health L.J. 149, 153 (2013).
 Amy Morin, 1 In 5 Employees Has a Mental Health Problem: Here’s What Business Leaders Can Do About It, Forbes (Feb. 16, 2017), https://www.forbes.com/sites/amymorin/2017/02/16/1-in-5-employees-has-a-mental-health-problem-heres-what-business-leaders-can-do-about-it/#30bb71ed38b8.
 Vroman, supra note 2, at 162 (citing Equal Emp’t Opportunity Comm’n, Notice No. 915.002, EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities P 1 (Mar. 25, 1997)).
 Randal I. Goldstein, Mental Illness in the Workplace after Sutton v. United Air Lines, 86 Cornell L. Rev. 927, 929 (2001) (emphasis added).
 Sutton v. United Air Lines, 527 U.S. 471, 475 (1999).
 Toyota Motor Mfg., Ky. v. Williams, 534 U.S. 184, 187 (2002).
 ADA Amendments Act of 2008, Pub. L. No. 110-325 § 2(b), 122 Stat. 3553, 3554 (2008).
 29 C.F.R. § 1630.2(h)(2) (emphasis added).
 Jennifer M. Jackson, The Americans with Disabilities Act, Mental Illness, and Medication: a Historical Perspective and Hope for the Future, 12 Marq. Elder’s Advisor 219, 220 (2010)
 Stephen F. Befort, An Empirical Examination of Case Outcomes under the ADA Amendments Act, 70 Wash. & Lee L. Rev. 2027, 2027 (2013).
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 Andrea Loubier, Benefits of Telecommuting for the Future of Work, Forbes (Jul. 20, 2017), https://www.forbes.com/sites/andrealoubier/2017/07/20/benefits-of-telecommuting-for-the-future-of-work/#62797bbe16c6.
 Sylvia Vorhauser-Smith, How the Best Places to Work Are Nailing Employee Engagement, Forbes (Aug. 14, 2013), https://www.forbes.com/sites/sylviavorhausersmith/2013/08/14/how-the-best-places-to-work-are-nailing-employee-engagement/#4c207eeb5cc7.
 Kevin Kruse, Why Employee Engagement? (These 28 Research Studies Prove the Benefits), Forbes (Sep. 4, 2012), https://www.forbes.com/sites/kevinkruse/2012/09/04/why-employee-engagement/3/#66aba0683448.
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 Heather R. Huhman, These 8 Companies Know the Impact of Supporting Mental Health in the Workplace, Entrepreneur (May 15, 2017), https://www.entrepreneur.com/article/294143.