FREE ESSAY ON ADA AND PSYCHIATRIC DISABILITIES

ADA AND PSYCHIATRIC DISABILITIES

THE AMERICAN'S WITH DISABILITIES ACT
AND PSYCHIATRIC DISABILITIES
Patricia Faye Pierce
Professor B. Barnard
HRM 527
Spring 1998
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TABLE OF CONTENTS
Chapter
1 INTRODUCTION 1
Orientation to Topic 1
Purpose of Study 1
Overview 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
Conduct 12
Direct Threat Exception 13
CONCLUSION 16
BIBLIOGRAPHY 17
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CHAPTER 1
INTRODUCTION
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).
Orientation to Topic
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).
Purpose of the Study
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.
Overview
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
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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).
Suggestions for HR Managers
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
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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
company (1:4).
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.
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CHAPTER 2
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.
Covered Disorders
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).
Exclusions From ADA
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.
Former Illegal Drug Users
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
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Stress
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.
Substantial Impairment (5:2)
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
activity.
Major Life Activity
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.
Individualized Assessment
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.
Medication
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.
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Length of Time
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 Disorders
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.
Ability to Concentrate
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
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mind going blank on a frequent basis.
Ability to Sleep
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.
Ability to Care For Self
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)
Pre-employment Prohibitions
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.
Confidentiality
Employers must keep all information concerning the medical condition or
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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.
Request for Accommodation
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
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request a reasonable accommodation on behalf of an individual with a disability.
Need Not Be In Writing
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.
Can Be Made at Any Time
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
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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.
In General
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.
Leaves of Absences
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.
Change in Work Hours
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.
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Changes in Absence Policies
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
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.
Equipment
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.
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Job Coach
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.
Job Reassignment
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.
Cannot Monitor Medication
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.
JAN as a Resource
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.
Conduct (5:9)
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
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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.
Direct Threat Exception (5:11)
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.
Significant Risk Required
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
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reasonable accommodation. A significant risk is a high risk, and not just a slightly
increased risk.
Individualized Assessment
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.
Operating Machinery
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,
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including an assessment of the likelihood and imminence of future violence.
Attempted Suicide
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.
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CONCLUSION
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
placement.
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.
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REFERENCES
"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 Netscape@www.hrlawindex.com
Winger, Lawrence C., "Employee Psychological Injuries and the Employer's Duty of
Reasonable Accommodation," Kraft & Winger, August 1997, on-line, available from
Netscape@www.kraftwinger.com
Conners, Richard L., "New EEOC Guidance on Psychiatric Disabilities," Law at Work, Fall
1997, on-line, available from Netscape@www.hrlawindex.com
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 Netscape@//janweb.icdi.wvu.edu