THE AMERICANS WITH DISABILITIES ACT Orientation toTopic 1 Purpose of Study 1 2 EEOC GUIDELINES ONPSYCHIATRIC DISABILITIES 4 Mental ImpairmentsUnder the ADA 4 Substantial Impairment 5Disclosure of Mental Disability 7 RequestingReasonable Accommodations 8 Selected Types ofReasonable Accommodation 10 Direct ThreatException 13 Alleged discrimination againstemployees with psychiatric problems is the secondmost common type of Americans With DisabilitiesAct (ADA) claim filed with the federal EqualEmployment Opportunity Commission (EEOC). Thesecomplaints represent approximately 13 percent ofthe ADA charges filed with the agency (back paindiscrimination complaints rank number one) (1:1).Many human resource managers have experiencedeveloping accommodations for employees withphysical disabilities, under the ADA, however,human resource professionals have had limitedexperience with the needs of those with mental orpsychiatric disabilities. The return of employeesto work after they have had psychiatric treatmentscan be one of the most difficult assignments facedby an HR manager, due to the stigma attached tomental illness (2:1). HR managers shouldfamiliarize themselves with the many legalobligations involved in accommodating an employeewith a mental impairment. The purpose of thisstudy is to provide basic information relating tothe ADA and psychiatric disabilities. LegalObligation, Accommodation and Confidentiality Foremployers, it is a difficult task to distinguishbetween troublesome employees exhibitingmisconduct and an employee suffering from a truepsychiatric disability protected by Title I of theADA (2:1).
Under the ADA, the legal obligation ison the employee to come forward with sufficientmedical evidence of a disability. The employee orthe employees physician should suggest variousforms of accommodation if needed. In this case,the physician treating the individual with apsychiatric disability should be provided with ajob description of the persons duties and, ifappropriate, a videotape of the work area. Inpsychiatric situations, the physical functions ofthe job are less important than the nature of thejob, personal interactions at work, and howstressful the job is (2:2). Accommodations formentally disabled employees are often less costlyand burdensome than accommodations for physicallydisabled people. They can often be accomplished byrestructuring job duties, allowing moreflexibility in the performing of duties and workschedules, providing a job coach and by additionaltraining (3:1).The accommodation for the workercan be requested by the employee, family member,friend, medical professional or otherrepresentative, and the request need not mentionthe ADA or use the term reasonable accommodation(4:2). It is important that HR managers be awareof the need for confidentiality and not violatingon employees rights under the ADA.
The ADAspecifies that disability related information isconfidential and belongs in files separate fromregular personnel files. Employers may disclosesuch information only to a limited group ofpersons in select circumstances, such as tosupervisors when work restrictions are necessary(4:2). There are several things HR managers can doto prepare themselves for an ADA psychiatricclaim. HR managers should not try to assess theillness.HR managers should gain employee input,backed by a psychiatrists comments andsuggestions, on how the person should be placedeffectively back on the job. HR managers shouldread the ADA sections on employment of people withdisabilities and the EEOC guidelines onpsychiatric disabilities issued in March 1997.
Managers and floor supervisors should have somegeneral information on the ADA and on psychiatricdisabilities, as well as know whom to turn to forguidance within the The preceding informationprovided a brief summary of how psychiatricdisabilities relate to the ADA. The followingchapter will provide a summary of the EEOCguidelines issued March 1997 relating topsychiatric disabilities. EEOC GUIDELINES ONPSYCHIATRIC DISABILITIES On March 25, 1997, theEqual Employment Opportunity Commission (EEOC)issued guidance setting forth its position on theapplication of the Americans With Disabilities Act(ADA) to individuals with psychiatricdisabilities.
According to the EEOC, the workforceincludes many individuals with psychiatricdisabilities who face employment discriminationbecause their disabilities are stigmatized ormisunderstood. The EEOC’s guidance, a summary ofwhich follows, was issued in an effort to combatsuch employment discrimination as well as themyths, fears, and stereotypes upon which it isbased (5:1-16).Mental Impairments Under the ADA(5:2) Under the ADA, “disability” includes aphysical or mental impairment that substantiallylimits one or more of the major life activities ofan individual. Mental impairment includes anymental or psychological disorder such as emotionalor mental illness, including major depression,bipolar disorder, anxiety disorders (includingpanic disorder, obsessive compulsive disorder,schizophrenia and personality disorders).
Varioussexual behavior disorders, compulsive gambling,kleptomania, pyromania, and psychoactive substanceuse disorders resulting from current illegal useof drugs are specifically excluded from the ADA’sdefinition of disability. Individuals who are notcurrently engaging in the illegal use of drugs andwho are participating in, or have successfullycompleted, a supervised drug rehabilitationprogram may be covered by the ADA Traits orbehaviors are not, in themselves, mentalimpairments. For example, stress, in itself, isnot automatically a mental impairment. Stress,however, may be shown to be related to a mental orphysical impairment.Chronic Lateness – PoorJudgment Similarly, traits like irritability,chronic lateness, and poor judgment are not, inthemselves, mental impairments. Under the ADA, animpairment rises to the level of a disability ifit substantially limits a major life activity.
Substantial limitation is evaluated in terms ofthe severity of the limitation and the length oftime it restricts a major life Major lifeactivities limited by mental impairments differfrom person to person, and may include learning,thinking, concentrating, interacting with others,caring for oneself, speaking, performing manualtasks, or working. Sleeping is also a major lifeactivity that may be limited by mentalimpairments. Working should be analyzed only if noother major life activity is substantially limitedby an impairment.
The determination that aparticular individual has a substantially limitingimpairment should be based on information abouthow the impairment affects that individual and noton generalizations about the condition. Accordingto the EEOC, an individual who is takingmedication for a mental impairment has an ADAdisability if there is evidence that the mentalimpairment, when left untreated, substantiallylimits a major life activity.An impairment issubstantially limiting if it lasts for more thanseveral months and significantly restricts theperformance of one or more major life activitiesduring that time.
It is not substantially limitingif it lasts for only a brief time or does notsignificantly restrict an individual’s ability toperform a major life activity. Chronic, episodicconditions may constitute substantially limitingimpairments if they are substantially limitingwhen active or have a high likelihood of recurringin substantially limiting forms. For someindividuals, psychiatric impairments such asbipolar disorder, major depression, andschizophrenia may remit and intensify, sometimesrepeatedly, over the course of several months orseveral years. Compared With Average Person Withrespect to “interaction with others,” “ability toconcentrate,” “ability to sleep,” or “ability tocare for oneself” the individual’s restrictionsare to be compared to the average person in thegeneral population. Ability to Interact WithOthers Some unfriendliness with co-workers or asupervisor would not, standing alone, besufficient to establish a substantial limitationin interacting with others.However, an individualwould be substantially limited if his/herrelations with others were characterized on aregular basis by severe problems, for example,consistently high levels of hostility, socialwithdrawal, or failure to communicate whennecessary. An individual would be substantiallylimited if s/he was easily and frequentlydistracted, meaning that his/her attention wasfrequently drawn to irrelevant sights or sounds orto intrusive thoughts; or if s/he experiencedhis/her “mind going blank” on a frequent basis. Anindividual who sleeps only a negligible amountwithout medication for many months, due topost-traumatic stress disorder, or who for severalmonths typically slept about two or three hoursper night without medication, due to depression,would be substantially limited in sleeping.
Somepsychiatric impairments, for example, majordepression, may result in an individual sleepingtoo much. In such cases, an individual may besubstantially limited, if, as a result of theimpairment, s/he sleeps so much that s/he does noteffectively care for him/herself (such as gettingup in the morning, bathing, dressing, andpreparing or obtaining food). Disclosure of MentalDisability (5:4) Employers are prohibited fromasking disability-related questions before makingan offer of employment (including on an employmentapplication or in an interview).An exception,however, is if an applicant asks for reasonableaccommodation for the hiring process (e.g.,testing, interviewing, etc.).
Requesting MedicalDocumentation If an applicant’s need for anaccommodation is not obvious, an employer may askthe applicant for reasonable documentation abouthis/her disability. An employer should make clearto the individual why it is requesting suchinformation (i.e., to verify the existence of adisability and the need for an accommodation). Ifthe applicant withdraws his/her request for areasonable accommodation, the employer cannotcontinue to insist on obtaining the documentation.Employers must keep all information concerning themedical condition or history of its applicants oremployees, including information about psychiatricdisability, confidential under the ADA.
Thisincludes medical information that an individualvoluntarily tells his/her employer. Employers mustcollect and maintain such information on separateforms and in separate medical files, apart fromthe usual personnel files.Supervisors andmanagers may be told about necessary restrictionson the work or duties of the employee andnecessary accommodations. Communications WithCo-Workers If employees ask questions about aco-worker who has a disability, the employer mustnot disclose any medical information in response.An employer also may not tell employees whether itis providing a reasonable accommodation for aparticular individual. (A statement that anindividual receives a reasonable accommodationprobably has a disability because only individualswith disabilities are entitled to reasonableaccommodations under the ADA). However, anemployer may explain that it is acting forlegitimate business reasons or in compliance withfederal law. Requesting Reasonable Accommodations(5:6) An employer must provide a reasonableaccommodation to the known physical or mentallimitations of a qualified individual with adisability unless it can show that theaccommodation would impose an undue hardship.
Anindividual (or his/her representative) must letthe employer know that s/he needs an adjustment orchange at work for a reason related to a medicalcondition.However, to request accommodation, anindividual may use “plain English,” and need notmention the ADA or use the phrase “reasonableaccommodation.” Others May Request on Behalf ofEmployee A family member, friend, healthprofessional, or other representative may requesta reasonable accommodation on behalf of anindividual with a disability. Requests forreasonable accommodation do not need to be inwriting.
Employees may request accommodations inconversation or may use any other mode ofcommunication. An individual with a disability isnot required to request a reasonable accommodationat the beginning of employment. S/he may request areasonable ac ….