One of the most difficult issues employers deal with is how to accommodate an employee with a mental impairment under the Americans with Disabilities Act (ADA). Mental impairments can include depression, anxiety disorders, and psychiatric disorders that affect employees’ attendance and performance. Employers may have a difficult time distinguishing mental impairments from other common employee behaviors. For example, an employee may frequently miss work because he suffers from depression. Balancing the needs of the business and the needs of disabled employees while staying within the ADA’s often confusing framework can be challenging. 
Evolving legal standard
Generally, for an employee to be successful in a lawsuit against an employer under the ADA, he must show that (1) the employer is covered by the Act, (2) he is disabled as defined by the Act, (3) he was qualified to perform the essential functions of his job with or without a reasonable accommodation, and (4) he suffered an adverse employment action because of his disability or the employer refused to accommodate his disability. Before 2009, courts usually decided cases by asking whether employees were disabled under the ADA.
The ADA Amendments Act of 2008 (ADAAA) broadened the class of conditions that qualify as a disability and instructed courts to focus on the third prong (whether the employee was qualified to perform the essential functions of his job with or without a reasonable accommodation) instead of the disability prong. Note that the ADAAA’s rules apply only to cases in which the facts that form the basis for the lawsuit occurred after January 1, 2009.
Mental impairment is defined as “any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” Under the ADA, courts frequently dismissed claims because employees were not disabled within the meaning of the Act. For example, courts found that employees who suffered from transient or relatively mild impairments were not disabled. The ADAAA advises against that kind of analysis. Therefore, employees who were previously not disabled under the ADA now must be reasonably accommodated.
Mental impairment claims are especially challenging because it can be difficult to separate employees’ performance issues from the symptoms of mental impairments. As one federal court put it, there may be “nothing . . . to suggest to employers that the poor performance of the [employee] is not necessarily the result of some other factor such as general ‘poor performance [or] mere misbehavior’ or lack of ability.” However, courts have provided guidance to enable employers to balance empathy toward employees’ mental impairments with the demands of the work environment.
Key points about your obligations under the ADAAA
These tips are explained both broadly and as they relate to mental impairments in particular:
- Disabled employees must be able to perform the essential functions of their job. In the end, the key emphasis of this case is that disabled employees still must be able to perform the essential functions of their job with or without a reasonable accommodation. You are not required to continue employing a worker if a disability prevents him from being able to perform the essential functions of his job with a reasonable accommodation.
- The employee must show that he can perform the functions of his job with a reasonable accommodation. The burden to show that the employee is unable to work is not on the employer.
- What you reasonably don’t know can’t hurt you. Since the symptoms of a mental impairment may not be visible, it may be difficult to discern whether an employee’s performance is separate from his impairment. Courts are aware of that, and several courts have noted that the employee has the responsibility of making his employer aware of his mental impairment. As one court noted, the ADA “does not require clairvoyance.”
- A reasonable accommodation can’t eliminate an essential job function. In this case, the court stated in a footnote that it is “axiomatic” that a reasonable accommodation cannot involve the elimination of essential job functions. Therefore, an employee who asks for crucial functions of his job to be eliminated is not requesting a reasonable accommodation. While employers cannot create essential job functions with the intent of terminating a disabled employee, courts give deference to employers’ definitions of essential job functions.
- You are not required to give an employee any accommodation he wants. You are not obligated to provide an employee with a specific accommodation, and you may propose an alternative reasonable accommodation. An employee’s rejection of your proposed reasonable accommodation could cause him to lose his case.
- You are not required to create a new position to accommodate an employee’s disability. An employee may request to be transferred to another job, but if the position is not vacant or does not exist, you aren’t required to transfer him.
- Generally, reasonable accommodations must be requested before an employee suffers an adverse employment action. The most recent guidance from the Equal Employment Opportunity Commission (EEOC) advises that “a reasonable accommodation is always prospective,” meaning it must be requested before an adverse employment action (e.g., firing an employee) takes place. Courts have repeatedly held that an employer is not required to excuse past misconduct or give an employee a second chance if it was reasonably not aware of the employee’s disability.
Bottom line
The ADAAA is intended to protect employees who can perform their job despite having a disability. It is not intended to force employers to employ workers who are unable to perform their jobs even with a reasonable accommodation. Knowing your obligations under the law will enable you to address and accommodate employees’ needs while taking your interests into account.
Allison Wannop is an attorney with Dinse, Knapp & McAndrew in Burlington, Vermont. She assists clients with employment law related matters. She may be contacted at awannop@dinse.com.