Mental impairments should be handled exactly the same way as physical impairments are, she adds. Hamilton’s remarks came at BLR’s Advanced Employment Issues Symposium, held recently in Nashville, Tennessee. Hamilton practices law in Tulsa, Oklahoma.

By the way, says Hamilton, don’t say things like “that person’s crazy”; that can rebound as a “regarded as” claim.

Duty to Engage in Interactive Discussion

An employer who is aware of an employee’s mental disability has a duty to engage that employee in an interactive discussion if the employee’s disability is causing difficulty in performing the job.

For example, if the employee told you about an impairment, or requested FMLA, then you have a duty to respond. However, Hamilton says, you can ignore scuttlebutt and rumors.

If the employer is not aware of a mental disability, the employer should treat the performance problem.

In some cases, she adds, you may need to seek the assistance of an outside expert.

In any event, once an employer is aware of an individual’s disability and its effect on job performance, the employer must enter an interactive discussion to determine if there is anything to assist the employee.

You May Have to Make the First Move

The EEOC recognizes that people with mental impairments may be reluctant to come to you; if you know about an impairment, you may have to make the first move, Hamilton says.

The best general approach is “You’re having trouble with X; what can we do to make it better.”

Do not approach the situation with “I think you have a disability,” Hamilton says.

Typical reasonable accommodations for mental impairments include:

• Room dividers or sound barriers
• Moving the employee away from noisy machinery or reducing workplace noise
• Modification of strict workplace policies that aren’t essential
• Providing more detailed analysis or written instructions for employees
• Providing a job coach

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How to Handle Problems in Conduct

An employer is allowed to enforce conduct rules, so long as the conduct rules are job-related and consistent with business necessity.

Certain behavioral disorders are disqualified from the definition of disability, for example:

• Kleptomania
• Pyromania
• Compulsive gambling
• Certain sexual disorders

Some Basics Changed under New Regulations

Under ADA Amendments issue on March 25, 2011:

• Determination of whether someone is disabled will require minimum analysis
• Focus in ADA cases will be on whether discrimination occurred
• If any impairment substantially limits one major life activity, that is enough to show that a disability exists
• Comparison of an individual’s limitation to the general population may be made in a commonsense fashion, without a statistical analysis

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As far as “substantially limits,” new EEOC regulations state:

• The definition should be construed broadly in favor of expansive coverage and is not considered to be a demanding standard.
• There is no need tor medical or scientific information to make a determination
• Look at whether a person is substantially limited as compared to most people in the general population, but the impairment need not prevent or significantly restrict the individual from performing a major life activity
• The focus should be on whether an organization has fulfilled its duties, not on whether an impairment is substantially limiting

In tomorrow’s Advisor, real-life examples of mental disabilities, plus good news—your critical policies are written and up to date.

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