One overlooked, ignored, and/or feared area of the ADA is dealing with employees who suffer from mental disabilities, say attorneys Julie K.Athey and Audra K. Hamilton. Because many mental disabilities are hard to spot, hard to diagnose, and hard to handle, employers may either give too much attention (fear, stigma, termination) or too little, pretending they don’t exist.

Either approach spells trouble, the attorneys say. Athey, a writer on employment law and human resources, and Hamilton, who practices in Tulsa, Oklahoma, are authors of ADA Compliance: Practical Solutions for HR.

Handling Mental Disabilities

At the core, mental disabilities are handled exactly the same as physical impairments. In other words, an employer who knows about an employee’s mental disability has a duty to engage in an interactive discussion if the disability if adversely affecting the employee’s ability to perform the essential functions lf the job.

Employers are generally prohibited from discriminating against employees on the basis of a mental disability the same as they are prohibited from discriminating against those who have physical impairments.

These principles seem simple enough, but they are usually more difficult than they sound when it comes to applying them in your workplace.

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Substantially Limits

As with any other impairment, to be an disability under the ADA, a mental impairment must substantially limit one or more major life activities. In the realm of mental disabilities, this can include learning, thinking, concentrating, speaking, performing manual tasks, interacting with others, and working.

Whether these tasks are substantially limited depends on individual circumstances, just as with physical disabilities.

The EEOC has noted that its investigators should focus on the individual’s typical level of functioning at home, at work, and in other settings, as well as how those limitations are linked to the impairments.

Under the regulations, several mental impairments are listed among those that will “virtually always” be disabilities because they substantially limit brain function, including:

  • Intellectual disability (formerly termed mental retardation)
  • Autism
  • Major depressive disorder
  • Bipolar disorder
  • Post-traumatic stress disorder
  • Obsessive compulsive disorder
  • Schizophrenia

If an employee has one or more of these impairments, the guesswork is largely removed, and you can rest assured that the EEOC will consider that employee to be actually disabled under the law.

Remedial Effects Not Considered

It is important to remember that under the ADAAA, a person continues to be actually disabled irrespective of the remedial effects of any medication. This means that an employee with a mental disability that is controlled by medication is still considered disabled and may be entitled to accommodation.

For example, an employer may not consider an individual's use of insulin to control his diabetes when determining whether the diabetes substantially limits the major life activity of eating. Examples of mitigating measures listed in the ADA include:

  • Medication
  • Medical supplies, equipment, or appliances
  • Low-vision devices
  • Prosthetics, including limbs and devices
  • Hearing aids, cochlear implants, or other implantable hearing devices
  • Mobility devices
  • Oxygen therapy equipment and supplies
  • Use of assistive technology
  • Reasonable accommodations or auxiliary aids or services
  • Learned behavioral or adaptive neurological modifications
  • Psychotherapy, behavioral therapy, or physical therapy

Ordinary eyeglasses or contact lenses that are intended to fully correct vision are not considered mitigating measures and may be considered in determining whether an impairment is a disability.

The ADAAA expressly rejected the Supreme Court ruling that the determination as to whether an impairment “substantially limits” one or more major life activities must be made when an individual is medicated or is using his or her assistive device, a so-called “mitigating measure” (Sutton v. United Airlines, Inc., 119 S.Ct. 2139 (1999)).

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Example: James has bipolar disorder. Before he was diagnosed, he would become withdrawn during depressive episodes and stay in his room for days. He was frequently unable to talk to people or perform basic tasks, such as go the grocery store and take care of his daily needs.

During his manic episodes, he would have delusions of grandeur and lose touch with reality at times, thinking he had special powers.

He was diagnosed last year and, after some trial and error, placed on a series of medications that allow him to function within a normal range of behavior.

James would not have been considered disabled under the old ADA, because his medications control his symptoms and prevent them from substantially limiting any major life activity. However under the ADAAA, James is still considered disabled.

In tomorrow’s Advisor, reasonable accommodation for mental disabilities, plus an introduction to the “ADA Bible.”