THE AMERICAN’S WITH DISABILITIES ACT
Orientation to Topic 1
Purpose of Study 1
2 EEOC GUIDELINES ON PSYCHIATRIC DISABILITIES 4
Mental Impairments Under the ADA 4
Substantial Impairment 5
Disclosure of Mental Disability 7
Requesting Reasonable Accommodations 8
Selected Types of Reasonable Accommodation 10
Direct Threat Exception 13
Alleged discrimination against employees with psychiatric problems is the second most common type of American’s With Disabilities Act (ADA) claim filed with the federal Equal Employment Opportunity Commission (EEOC). These complaints represent approximately 13 percent of the ADA charges filed with the agency (back pain discrimination complaints rank number one) (1:1).
Many human resource managers have experience developing accommodations for employees with physical disabilities, under the ADA, however, human resource professionals have had limited experience with the needs of those with mental or psychiatric disabilities. The return of employees to work after they have had psychiatric treatments can be one of the most difficult assignments faced by an HR manager, due to the stigma attached to mental illness (2:1).
HR managers should familiarize themselves with the many legal obligations involved in accommodating an employee with a mental impairment. The purpose of this study is to provide basic information relating to the ADA and psychiatric disabilities.
Legal Obligation, Accommodation and Confidentiality
For employers, it is a difficult task to distinguish between troublesome employees exhibiting misconduct and an employee suffering from a true psychiatric disability protected by Title I of the ADA (2:1). Under the ADA, the legal obligation is on the employee to come forward with sufficient medical evidence of a disability. The employee or the employee’s physician should suggest various forms of accommodation if needed. In this case, the physician treating
the individual with a psychiatric disability should be provided with a job description of the person’s duties and, if appropriate, a videotape of the work area.
In psychiatric situations, the physical functions of the job are less important than the nature of the job, personal interactions at work, and how stressful the job is (2:2).
Accommodations for mentally disabled employees are often less costly and burdensome than accommodations for physically disabled people. They can often be accomplished by restructuring job duties, allowing more flexibility in the performing of duties and work schedules, providing a job coach and by additional training (3:1).
The accommodation for the worker can be requested by the employee, family member, friend, medical professional or other representative, and the request need not mention the ADA or use the term “reasonable accommodation (4:2).”
It is important that HR managers be aware of the need for confidentiality and not violating on employee’s rights under the ADA.
The ADA specifies that disability related information is confidential and belongs in files separate from regular personnel files. Employers may disclose such information only to a limited group of persons in select circumstances, such as to supervisors when work restrictions are necessary (4:2).
There are several things HR managers can do to prepare themselves for an ADA psychiatric claim.
HR managers should not try to assess the illness. HR managers should gain employee input, backed by a psychiatrist’s comments and suggestions, on how the person should be placed effectively back on the job. HR managers should read the ADA sections on employment of people with disabilities and the EEOC
guidelines on psychiatric disabilities issued in March 1997. Managers and floor
supervisors should have some general information on the ADA and on
psychiatric disabilities, as well as know whom to turn to for guidance within the
The preceding information provided a brief summary of how psychiatric disabilities relate to the ADA. The following chapter will provide a summary of the EEOC guidelines issued March 1997 relating to psychiatric disabilities.
EEOC GUIDELINES ON PSYCHIATRIC DISABILITIES
On March 25, 1997, the Equal Employment Opportunity Commission (EEOC) issued guidance setting forth its position on the application of the Americans With Disabilities Act (ADA) to individuals with psychiatric disabilities. According to the EEOC, the workforce includes many individuals with psychiatric disabilities who face employment discrimination because their disabilities are stigmatized or misunderstood. The EEOC’s guidance, a summary of which follows, was issued in an effort to combat such employment discrimination as well as the myths, fears, and stereotypes upon which it is based (5:1-16).
Mental Impairments Under the ADA (5:2)
Under the ADA, “disability” includes a physical or mental impairment that substantially limits one or more of the major life activities of an individual.
Mental impairment includes any mental or psychological disorder such as emotional or mental illness, including major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive compulsive disorder, schizophrenia and personality disorders).
Various sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs are specifically excluded from the ADA’s definition of disability.
Individuals who are not currently engaging in the illegal use of drugs and who are participating in, or have successfully completed, a supervised drug
rehabilitation program may be covered by the ADA
Traits or behaviors are not, in themselves, mental impairments. For example, stress, in itself, is not automatically a mental impairment. Stress, however, may be shown to be related to a mental or physical impairment.
Chronic Lateness – Poor Judgment
Similarly, traits like irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments.
Under the ADA, an impairment rises to the level of a disability if it substantially limits a major life activity. Substantial limitation is evaluated in terms of the severity of the limitation and the length of time it restricts a major life
Major life activities limited by mental impairments differ from person to person, and may include learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working. Sleeping is also a major life activity that may be limited by mental impairments. Working should be analyzed only if no other major life activity is substantially limited by an impairment.
The determination that a particular individual has a substantially limiting impairment should be based on information about how the impairment affects that individual and not on generalizations about the condition.
According to the EEOC, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity.
An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time. It is not substantially limiting if it lasts for only a brief time or does not significantly restrict an individual’s ability to perform a major life activity.
Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurring in substantially limiting forms. For some individuals, psychiatric impairments such as bipolar disorder, major depression, and schizophrenia may remit and intensify, sometimes repeatedly, over the course of several months or several years.
Compared With Average Person
With respect to “interaction with others,” “ability to concentrate,” “ability to sleep,” or “ability to care for oneself” the individual’s restrictions are to be compared to the average person in the general population.
Ability to Interact With Others
Some unfriendliness with co-workers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. However, an individual would be substantially limited if his/her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.
An individual would be substantially limited if s/he was easily and frequently distracted, meaning that his/her attention was frequently drawn to irrelevant sights or sounds or to intrusive thoughts; or if s/he experienced his/her
“mind going blank” on a frequent basis.
An individual who sleeps only a negligible amount without medication for many months, due to post-traumatic stress disorder, or who for several months typically slept about two or three hours per night without medication, due to depression, would be substantially limited in sleeping.
Some psychiatric impairments, for example, major depression, may result in an individual sleeping too much. In such cases, an individual may be substantially limited, if, as a result of the impairment, s/he sleeps so much that s/he does not effectively care for him/herself (such as getting up in the morning, bathing, dressing, and preparing or obtaining food).
Disclosure of Mental Disability (5:4)
Employers are prohibited from asking disability-related questions before making an offer of employment (including on an employment application or in an interview). An exception, however, is if an applicant asks for reasonable accommodation for the hiring process (e.g., testing, interviewing, etc.).
Requesting Medical Documentation
If an applicant’s need for an accommodation is not obvious, an employer may ask the applicant for reasonable documentation about his/her disability. An employer should make clear to the individual why it is requesting such information (i.e., to verify the existence of a disability and the need for an accommodation). If the applicant withdraws his/her request for a reasonable
accommodation, the employer cannot continue to insist on obtaining the documentation.
Employers must keep all information concerning the medical condition or
history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his/her employer. Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files. Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and necessary accommodations.
Communications With Co-Workers
If employees ask questions about a co-worker who has a disability, the employer must not disclose any medical information in response. An employer also may not tell employees whether it is providing a reasonable accommodation for a particular individual. (A statement that an individual receives a reasonable accommodation probably has a disability because only individuals with disabilities are entitled to reasonable accommodations under the ADA). However, an employer may explain that it is acting for legitimate business reasons or in compliance with federal law.
Requesting Reasonable Accommodations (5:6)
An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship.
An individual (or his/her representative) must let the employer know that s/he needs an adjustment or change at work for a reason related to a medical condition. However, to request accommodation, an individual may use “plain
English,” and need not mention the ADA or use the phrase “reasonable accommodation.”
Others May Request on Behalf of Employee
A family member, friend, health professional, or other representative may
request a reasonable accommodation on behalf of an individual with a disability.
Requests for reasonable accommodation do not need to be in writing. Employees may request accommodations in conversation or may use any other mode of communication.
An individual with a disability is not required to request a reasonable accommodation at the beginning of employment. S/he may request a reasonable accommodation at any time during employment.
Request for Medical Documentation
When the need for accommodation is not obvious, an employer may ask an employee for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the employee has a covered disability for which s/he needs a reasonable accommodation.
Documentation Submitted by Employee
A variety of health professionals may provide such documentation with regard to psychiatric disabilities, including primary health care professionals, psychiatrists, psychologists, psychiatric nurses, and licensed mental health professionals such as licensed clinical social workers and licensed professional counselors. Important information about an individual’s functional limitations also may be obtained from non-professionals, such as the individual, his/her family members, and friends.
Requiring Individual to Go to Employer-Appointed Physician
The ADA does not prevent an employer from requiring an employee to go to
an appropriate health professional of the employer’s choice if the employee initially provides insufficient information to substantiate that s/he has an ADA disability and needs a reasonable accommodation. If an employer requires an employee to go to a health professional of the employer’s choice, the employer
must pay all costs associated with the visit(s). When a primary health care professional supplies documentation about a psychiatric disability, his/her credibility depends on how well s/he knows the individual and on his/her knowledge about the psychiatric disability. Employers also may consider alternatives like having their health professional consult with the employee’s health professional, with the employee’s consent.
Selected Types of Reasonable Accommodation (5:8)
Reasonable accommodations for individuals with disabilities must be determined on a case-by-case basis because workplaces and jobs vary, as do people with disabilities.
Accommodations for individuals with psychiatric disabilities may involve changes to workplace policies, procedures, or practices. Physical changes to the workplace or extra equipment also may be effective reasonable accommodations for some people.
Permitting the use of accrued paid leave or providing additional unpaid leave for treatment or recovery related to a disability is a reasonable accommodation, unless (or until) the employee’s absence imposes an undue hardship on the operation of the employer’s business. This includes leaves of absence, occasional leave (e.g., a few hours at a time), and part-time scheduling.
A related accommodation is to allow an individual with a disability to change his/her regularly scheduled working hours, barring undue hardship.
Some medications taken for psychiatric disabilities cause extreme grogginess and lack of concentration in the morning. Depending on the job, a later schedule can enable the employee to perform essential job functions.
Granting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies. As an example, it would be a reasonable accommodation to modify a policy requiring employees to schedule vacation time in advance if an otherwise qualified individual with a disability needed to use accrued vacation time on an unscheduled basis because of disability-related medical problems, barring undue hardship.
Physical changes to the workplace, such as room dividers, partitions, or other soundproofing or visual barriers between workspaces may accommodate individuals who have disability-related limitations in concentrations. Moving an individual away from noisy machinery or reducing other workplace noise that can be adjusted (e.g., lowering the volume or pitch of telephone) are similar reasonable accommodations. Permitting an individual to wear headphones to block out noisy distractions also may be effective.
Some individuals who have disability-related limitations in concentration may benefit from access to equipment like a tape recorder for reviewing events such as training sessions or meetings.
Adjusting Supervisory Methods
In some circumstances, supervisors may be able to adjust their methods as a reasonable accommodation by, for example, communicating assignments, instructions, or training by the medium that is most effective for a particular individual (e.g., in writing, in conversation, or by electronic mail); providing or
arranging additional training or modified training materials; or providing more detailed day-to-day guidance, feedback, or structure.
An employer may be required to provide a temporary job coach to assist in the training of a qualified individual with a disability as a reasonable accommodation, barring undue hardship.
In general, reassignment must be considered as a reasonable accommodation when accommodation in the present job would cause undue hardship or would not be possible. Reassignment may be considered if there are circumstances under which both the employer and employee voluntarily agree that it is preferable to accommodation in the present position. Reassignment should be made to an equivalent position that is vacant or will become vacant within a reasonable amount of time. If an equivalent position is not available, the employer must look for a vacant position at a lower level for which the employee is qualified. Reassignment is not required if a vacant position at a lower level is also unavailable.
Medication monitoring is not a reasonable accommodation. Employers have no obligation to monitor medication because doing so does not remove a barrier that is unique to the workplace.
The Job Accommodation Network (JAN) provides advice free-of-charge to employers and employees contemplating reasonable accommodation. JAN can be reached at 1-800-ADA-WORK.
Circumstances may arise when employers need to discipline individuals with psychiatric disabilities for misconduct.
Violence, Threats, Misconduct
The ADA does not prevent an employer from maintaining a workplace free
of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability.
Conduct Standards Must Be Job Related
Other conduct standards may not be job-related for the position in question and consistent with business necessity (e.g., neat appearance for non-customer contact positions where individual’s appearance were exacerbated by disability). If the conduct standards are not job related, imposing discipline under them could violate the ADA.
Future Compliance With Conduct Standards
An employer must make reasonable accommodation to enable an otherwise qualified individual with a disability to meet a conduct standard in the future, barring undue hardship. Because reasonable accommodation is always prospective, however, an employer is not required to excuse past misconduct.
Employee Who Fails to Take Medication
An employee who engages in misconduct because of his/her failure of taking his/her medication may be told the consequences of continued misconduct in terms of uniform disciplinary procedures. However, it is the employee’s responsibility to decide about medication and to consider the consequences of not taking medication.
Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.”
A direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation. A significant risk is a high risk, and not just a slightly increased risk.
The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.
History of Psychiatric Disability
With respect to the employment of individuals with psychiatric disabilities, the employer must identify the specific behavior that would pose a direct threat. An individual does not pose a direct threat simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.
An individual does not pose a direct threat solely because s/he takes a medication that may diminish coordination for some people as a side effect. An individualized assessment must be made. Thus, an employer must determine the nature and severity of the individual’s side effects, how those side effects influence his/her ability to safely operate the machinery, and whether s/he has had safety problems in the past when operating the same or similar machinery while taking the medication. If a significant risk of substantial harm exists, then an employer must determine if there is a reasonable accommodation that will reduce or eliminate the risk.
History of Violence or Threats
An employer may refuse to hire someone based on his/her history of violence or threats or violence if it can show that the individual poses a direct
threat, based on an individualized assessment. The employer must identify the specific behavior on the part of the individual that would pose the direct threat,
including an assessment of the likelihood and imminence of future violence.
In most circumstances, an individual who has attempted suicide does not pose a direct threat when s/he seeks to return to work. An employer must base its determination on an individualized assessment of that person’s ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work.
The above is a summary of the guidelines only and does not go into great detail. The full guidelines should be studied for applicability to individual situations. Below are some closing remarks on the importance for HR managers to become knowledgeable about the ADA and how it relates to mental impairment and psychiatric disabilities.
Returning persons with psychiatric disabilities to gainful employment is a difficult issue since it involves human interactions, which can be very subjective.
Most employers want to do the right thing for their employees, or, at the very least, meet their legal obligations. To achieve this goal, HR managers must become knowledgeable of the ADA as it deals with psychiatric disabilities and, in effect, become “accommodations coordinators.” Employers are often confused or at a loss about how to accommodate a person with a mental impairment. Lack of knowledge, fear, stereotyping, and perhaps the person’s own inability to understand how his or her condition may manifest itself are all reasons for this situation. HR managers must obtain all information available to them and must require sufficient employee and professional medical input to make an effective
According to the National Institute for Mental Health in Rockville, Maryland, more than 51 million adults live with some sort of diagnosable mental disorder, with depression being the most common disorder (1:3). This statistic will have a great impact on HR managers of today and the future. It is important that HR managers prepare themselves for this so that they can make the best legal and moral decisions for all parties concerned.
“When Employees with Psychiatric Disabilities Return to Work – Practical Tips for Accommodation,” HR Manager’s Legal Reporter, No. 340 (1997).
Home, Roberts & Owen LLP, “Disability Dilemmas,” RE: VIEW, June 1997, on-line, available from [email protected]
Winger, Lawrence C., “Employee Psychological Injuries and the Employer’s Duty of Reasonable Accommodation,” Kraft & Winger, August 1997, on-line, available from [email protected]
Conners, Richard L., “New EEOC Guidance on Psychiatric Disabilities,” Law at Work, Fall 1997, on-line, available from [email protected]
EEOC Commission, EEOC Compliance Manual, EEOC Notice, Number 915.002, “EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities,” March 25, 1997, on-line, available from [email protected]//janweb.icdi.wvu.edu