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 is problematic.
HR on the spot: How does a company deal with disabilities that are frequently invisible and undetectable, and often hidden by the employee involved until an incident occurs?
The challenges are both legal and human-centered.
On the Legal Side: The ADA
The legal side involves compliance with the Americans with Disabilities Act (ADA) and its California counterpart, the Fair Employment and Housing Act (FEHA).
Under the ADA, mental illness (like physical illness) can be a covered disability, and those who suffer from it are entitled to the same rights—which means their employers must meet the same obligations.
The problem with the ADA, of course, is its breadth and vagueness … the product of trying to write a law that fits all situations and, in doing so, omitting specifics that would be helpful for those trying to administer it. Here are a few tips to keep in mind:
- Not all mental problems are disabilities under the ADA. Bipolar disorder, major depression, anxiety disorders, and other conditions that affect one or more major life activities are among those considered covered. Sexual behavior disorders, compulsive gambling, and disorders created by illegal drug use are among those that are not
- Stress on its own is not a covered disability. But it can be if a byproduct of other disabilities.
- Many reasonable accommodations are available for mental disorders. These include measures such as changing hours or allowing use of accrued leave for treatment or recovery, or transfer into another equivalent pay and status position that is less affected by the condition.
- Employer responsibilities for reasonable accommodation do not include meeting all the employee’s needs. For example, employers are not responsible for medication being taken as prescribed. You are also not required to provide every accommodation requested by an employee.
Bipolar Employees: HR’s Legal and Practical Accommodation Roadmap. Webinar this coming Thursday, the 30th—learn more!
The regulations list several mental impairments 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.
Note that under the Fair Employment and Housing Act, the ADA’s California counterpart, the test is whether one or more major life activities are merely “limited” by the impairment rather than “substantially limited”—so this makes a finding of disability even more likely.
Remedial Effects Not Considered
It is important to remember that under the ADA Amendments Act (ADAAA), a person continues to be actually disabled regardless 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.
The ADAAA expressly rejected the Supreme Court ruling that the determination of 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)).
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 ADAAA 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.
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 to 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 considered disabled.
Bipolar Employees: HR’s Legal and Practical Accommodation Roadmap
Webinar coming this Thursday, May 30, 2013
10:30 a.m. to Noon Pacific
With the ADAAA’s final regulations, new physical and mental impairments are considered disabilities, including impairments related to an employee’s mood and emotional state. This has opened the floodgates to new litigation, employee demands, and workplace conflict.
Bipolar disorder, also called manic depression or manic-depressive disorder, affects one in 20 Americans. Although treatable with medication, it’s considered a lifelong condition. Bipolar employees may exhibit racing thoughts, poor judgment, impulsive behavior, irritability, and many more issues that affect their ability to function at work, which poses a serious disability accommodation problem for employers.
Are your workplace policies and practices ready for the ADA’s expanded scope? Learn how to recognize the symptoms that employees diagnosed with bipolar disorder may experience, as well as the legal and practical obligations you have for accommodating them.
Participate in this interactive webinar, and you’ll learn:
- What really is bipolar disorder, including the number of people affected, signs of the disorder, medicinal side effects, and other indicators employers should be aware of
- Limitations employees with bipolar disorder may experience
- Types of workplace accommodations a doctor may recommend for someone undergoing treatment
- How to tell if someone who is bipolar may be disabled under the ADA
- When an accommodation may be considered an undue hardship
- How the FMLA impacts employees with bipolar disorder and those caring for family members with the diagnosis
- When bipolar disorder is considered a serious health condition entitling an employee to block, intermittent, or reduced schedule leave under the FMLA
- How to deal with performance issues and safety concerns when an employee is on treatment medication
- Documentation required for FMLA leave
- How to handle privacy issues, such as what constitutes medical information and how to ensure HIPAA and GINA compliance
- Practical steps employers can take to help bipolar employees manage their workloads, meet deadlines, reduce distractions, and boost performance
- How much information you can legally disclose to supervisors and coworkers about an employee’s condition
- What you may request to prove that an employee is disabled
- How to effectively—and legally—handle attendance-related issues
- Diagnosis of bipolar disorder and treatment adherence issues
- Disclosure options and workplace supports for employees with bipolar disorder
In just 90 minutes, learn the best practices for reasonably accommodating employees with bipolar disorder. Register now for this interactive event risk-free.
Can’t make it on Thursday? Order the CD and learn at your leisure.
Download your free copy of Training Your New Supervisors: 11 Practical Lessons today!
Seems like the safest route is to err on the side of disability these days.
Seems like the safest route is to err on the side of disability these days.