Employment Law Update: Depression & Other Mental Health Conditions in the Workplace: An Increasing Employer Challenge
Date: May 15, 2026
By:
Steven E. Bers
Of all medical conditions identified as the basis for a claim of disability discrimination, depression and mental health conditions represented the most cited conditions. In the most recent EEOC reporting, 21% of the disability claims involved depression, anxiety or similar conditions; tenfold cardiac claims (2.4%), cancer (2.9%) or diabetes (2.7%).
Traditionally, when discrimination was discussed in the employment context, concerns about gender and race often occupied the dialogue. Frontline supervisors are usually aware of prohibited gender and race-related conduct. However, few front-line supervisors and few managers have been fully trained to appreciate the affirmative accommodation requirements for employees presenting with mental conditions limiting certain substantial life activities, and who are thus protected by the ADA.
Today’s employers are especially challenged when intermittent leave rights are applied to mental conditions such as depression or migraine headache episodes that may make attendance unpredictable.
The EEOC technical assistance guidance lists a number of possible accommodations for employer consideration when an employee seeks an accommodation for a mental condition: “altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.” Easier said than done is an understandable response in many employment settings. The Guidance does not address the intermittent leave needs when merely reporting to work is uncertain, day by day.
At a minimum, an employer acts at great risk when it fails to engage in an interactive process of self-education as to the employee’s limitations, and a full discussion exploring what accommodations might still allow the employee to perform the essential functions of the job.
Not every disability can be accommodated. That conclusion should not be reached without legal discussion as to whether accommodation considerations have been adequate. Whiteford attorneys are available to assist in those considerations.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.