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Mental Disabilities And The ADA: EEOC Issues New Employer Guidelines

A worker is easily distracted and has trouble concentrating on what he’s doing. A supervisor is hostile and rude to co-workers. Another employee can’t seem to get to work on time and frequently appears groggy and withdrawn. You may think you have clear grounds for discipline or termination in situations such as these, but be careful before you act. Unlikely as it may seem, these employees could have psychiatric disabilities protected by the Americans with Disabilities Act (ADA). In fact, you could have to provide an accommodation if it allows the person to perform their essential job functions and is not an unreasonable hardship on you.

The number of ADA cases involving mental illness is rising, and employers are grappling with how to apply this murky area of the law to their own workplace situations. Now, the Equal Employment Opportunity Commission (EEOC) has prepared new guidelines to help clarify some issues, although many questions remain unanswered.

Protected Mental Disability Or Simple Personality Problem?

The new guidelines make clear that individual personality traits-such as irritability, chronic lateness and poor judgment-aren’t by themselves mental disabilities. But if those traits are linked to a mental impairment, the person could be covered by the ADA.

How can you tell the difference? According to the guidelines, look at these factors: 1) whether the person has a mental impairment, such as schizophrenia, bipolar disorder or a personality disorder; 2) whether the impairment is long-term, i.e., lasting for more than a few months; and 3) whether the impairment substantially limits a major life activity, such as learning, thinking, concentrating, interacting or working.

Note that the EEOC has now added sleeping to this list of major life activities.


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Applying The Guidelines

The EEOC illustrates how the guidelines work, for example, by contrasting two employees suffering from depression. The first is depressed because of the ending of a relationship. That person probably wouldn’t be covered because the disorder is not long-term. The other employee, who has experienced major depression for almost a year and has had trouble sleeping, concentrating, and interacting with others, probably would be protected by the ADA.

Another example would be an employee whose productivity goes down when they’re tired or bored. That person obviously wouldn’t be covered because many people share that same trait. But someone who is distracted and frequently can’t concentrate because of a long-term anxiety disorder could be protected.

Similarly, the EEOC says general unfriendliness with co-workers would not, standing alone, be a protected disability. But an employee who demonstrates consistently high levels of hostility, social withdrawal or failure to communicate would be “substantially limited” in interacting with others and could be covered by the ADA if the behavior is caused by a long-term mental impairment.

Reasonable Accommodations

If an employee’s condition satisfies the ADA definition of a mental impairment, you must provide a reasonable accommodation unless it would impose an undue hardship.

The EEOC suggests accommodations such as: 1) allowing a worker to take a leave of absence or work on a modified schedule in order to receive treatment; 2) moving the person’s desk to a quiet area or providing partitions to limit distractions; or 3) transferring the employee to a new position to reduce stressful interactions with co-workers.

Other suggestions include adjusting management methods, modifying workplace policies, or providing a job coach. However, note that you don’t have to lower performance standards.

Requesting An Accommodation

An employee who wants an accommodation isn’t required to specifically mention the ADA or use the term “reasonable accommodation.” Merely asking for time off because of stress or depression, for example, could put you on notice that the person is seeking an accommodation for a psychiatric condition. Also, the accommodation can be requested by family members, friends, or a doctor.

Verifying Psychiatric Disabilities

Under the guidelines, you can only ask employees about their disability or require a medical or psychiatric exam if you reasonably believe their ability to perform essential job functions is impaired by a mental condition or if they pose a direct threat to themselves or others. You cannot request an exam based on poor performance alone, but chronic bizarre behavior that interferes with job duties could justify further inquiry.

You can require a fitness-for-duty exam when an employee returns to work after a disability leave for a psychiatric disorder. An exam is also permitted when a worker asks for a reasonable accommodation and the disability isn’t obvious. Always be sure to keep this information confidential.

When it comes to job applicants, you can’t ask about past or current disabilities. Medical exams or questions about disabilities are legal after you have made a job offer as long as you subject all entering employees in the same job category to the same inquiries.

Handling Misconduct

The EEOC says you can discipline a disabled employee who violates a work rule even if the misconduct resulted from the disability. However, the rule in question must be job-related and necessary for business reasons. If not, you may have to bend your work rules as a reasonable accommodation.

You don’t have to lower performance standards for essential job functions. For example, you could discipline a librarian who consistently shouts at patrons if you have a rule prohibiting such conduct. If a disability caused the librarian’s behavior, however, you would still have to explore whether a reasonable accommodation, such as a leave of absence, would enable the person to meet your standards in the future.

On the other hand, if a worker whose job involves no customer contact comes to work looking disheveled, you might run into trouble if you discipline the person for not complying with your dress code and the employee’s problem is caused by a protected disability. That’s because dress requirements probably wouldn’t be considered sufficiently related to this position.

Finally, you can always take action if an employee poses a danger to the safety of the worker or others.

For More Information

For a copy of the EEOC guidelines, call (800) 669-3362.