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THE AMERICANS WITH DISABILITIES ACT Orientation to Topic 1 Purpose of Study 1 2 EEOC GUIDELINES ON PSYCHIATRIC DISABILITIES 4 Mental Impairments Under the ADA 4 Substantial Impairment 5 Disclosure of Mental Disability 7 Requesting Reasonable Accommodations 8 Selected Types of Reasonable Accommodation 10 Direct Threat Exception 13 Alleged discrimination against employees with psychiatric problems is the second most common type of Americans With Disabilities Act (ADA) claim filed with the federal Equal Employment Opportunity Commission (EEOC). These complaints represent approximately 13 percent of the ADA charges filed with the agency (back pain discrimination complaints rank number one) (1: 1). Many human resource managers have experience developing accommodations for employees with physical disabilities, under the ADA, however, human resource professionals have had limited experience with the needs of those with mental or psychiatric disabilities. The return of employees to work after they have had psychiatric treatments can be one of the most difficult assignments faced by an HR manager, due to the stigma attached to mental illness (2: 1). HR managers should familiarize themselves with the many legal obligations involved in accommodating an employee with a mental impairment. The purpose of this study is to provide basic information relating to the ADA and psychiatric disabilities.
Legal Obligation, Accommodation and Confidentiality For employers, it is a difficult task to distinguish between troublesome employees exhibiting misconduct and an employee suffering from a true psychiatric disability protected by Title I of the ADA (2: 1). Under the ADA, the legal obligation is on the employee to come forward with sufficient medical evidence of a disability. The employee or the employees physician should suggest various forms of accommodation if needed. In this case, the physician treating the individual with a psychiatric disability should be provided with a job description of the persons duties and, if appropriate, a videotape of the work area. In psychiatric situations, the physical functions of the job are less important than the nature of the job, personal interactions at work, and how stressful the job is (2: 2).
Accommodations for mentally disabled employees are often less costly and burdensome than accommodations for physically disabled people. They can often be accomplished by restructuring job duties, allowing more flexibility in the performing of duties and work schedules, providing a job coach and by additional training (3: 1). The accommodation for the worker can be requested by the employee, family member, friend, medical professional or other representative, and the request need not mention the ADA or use the term reasonable accommodation (4: 2). It is important that HR managers be aware of the need for confidentiality and not violating on employees rights under the ADA.
The ADA specifies that disability related information is confidential and belongs in files separate from regular personnel files. Employers may disclose such information only to a limited group of persons in select circumstances, such as to supervisors when work restrictions are necessary (4: 2). There are several things HR managers can do to prepare themselves for an ADA psychiatric claim. HR managers should not try to assess the illness.
HR managers should gain employee input, backed by a psychiatrists comments and suggestions, on how the person should be placed effectively back on the job. HR managers should read the ADA sections on employment of people with disabilities and the EEOC guidelines on psychiatric disabilities issued in March 1997. Managers and floor supervisors should have some general information on the ADA and on psychiatric disabilities, as well as know whom to turn to for guidance within the The preceding information provided a brief summary of how psychiatric disabilities relate to the ADA. The following chapter will provide a summary of the EEOC guidelines issued March 1997 relating to psychiatric disabilities. EEOC GUIDELINES ON PSYCHIATRIC DISABILITIES On March 25, 1997, the Equal Employment Opportunity Commission (EEOC) issued guidance setting forth its position on the application of the Americans With Disabilities Act (ADA) to individuals with psychiatric disabilities. According to the EEOC, the workforce includes many individuals with psychiatric disabilities who face employment discrimination because their disabilities are stigmatized or misunderstood.
The EEOC's guidance, a summary of which follows, was issued in an effort to combat such employment discrimination as well as the myths, fears, and stereotypes upon which it is based (5: 1 - 16). Mental Impairments Under the ADA (5: 2) Under the ADA, "disability" includes a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Mental impairment includes any mental or psychological disorder such as emotional or mental illness, including major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive compulsive disorder, schizophrenia and personality disorders). Various sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs are specifically excluded from the ADA's definition of disability. Individuals who are not currently engaging in the illegal use of drugs and who are participating in, or have successfully completed, a supervised drug rehabilitation program may be covered by the ADA Traits or behaviors are not, in themselves, mental impairments. For example, stress, in itself, is not automatically a mental impairment.
Stress, however, may be shown to be related to a mental or physical impairment. Chronic Lateness - Poor Judgment Similarly, traits like irritability, chronic lateness, and poor judgment are not, in themselves, mental impairments. Under the ADA, an impairment rises to the level of a disability if it substantially limits a major life activity. Substantial limitation is evaluated in terms of the severity of the limitation and the length of time it restricts a major life Major life activities limited by mental impairments differ from person to person, and may include learning, thinking, concentrating, interacting with others, caring for oneself, speaking, performing manual tasks, or working.
Sleeping is also a major life activity that may be limited by mental impairments. Working should be analyzed only if no other major life activity is substantially limited by an impairment. The determination that a particular individual has a substantially limiting impairment should be based on information about how the impairment affects that individual and not on generalizations about the condition. According to the EEOC, an individual who is taking medication for a mental impairment has an ADA disability if there is evidence that the mental impairment, when left untreated, substantially limits a major life activity. An impairment is substantially limiting if it lasts for more than several months and significantly restricts the performance of one or more major life activities during that time. It is not substantially limiting if it lasts for only a brief time or does not significantly restrict an individual's ability to perform a major life activity.
Chronic, episodic conditions may constitute substantially limiting impairments if they are substantially limiting when active or have a high likelihood of recurring in substantially limiting forms. For some individuals, psychiatric impairments such as bipolar disorder, major depression, and schizophrenia may remit and intensify, sometimes repeatedly, over the course of several months or several years. Compared With Average Person With respect to "interaction with others, "ability to concentrate, "ability to sleep, " or "ability to care for oneself" the individual's restrictions are to be compared to the average person in the general population. Ability to Interact With Others Some unfriendliness with co-workers or a supervisor would not, standing alone, be sufficient to establish a substantial limitation in interacting with others. However, an individual would be substantially limited if his / her relations with others were characterized on a regular basis by severe problems, for example, consistently high levels of hostility, social withdrawal, or failure to communicate when necessary. An individual would be substantially limited if s / he was easily and frequently distracted, meaning that his / her attention was frequently drawn to irrelevant sights or sounds or to intrusive thoughts; or if s / he experienced his / her "mind going blank" on a frequent basis.
An individual who sleeps only a negligible amount without medication for many months, due to post-traumatic stress disorder, or who for several months typically slept about two or three hours per night without medication, due to depression, would be substantially limited in sleeping. Some psychiatric impairments, for example, major depression, may result in an individual sleeping too much. In such cases, an individual may be substantially limited, if, as a result of the impairment, s / he sleeps so much that s / he does not effectively care for him / herself (such as getting up in the morning, bathing, dressing, and preparing or obtaining food). Disclosure of Mental Disability (5: 4) Employers are prohibited from asking disability-related questions before making an offer of employment (including on an employment application or in an interview). An exception, however, is if an applicant asks for reasonable accommodation for the hiring process (e.
g. , testing, interviewing, etc. ). Requesting Medical Documentation If an applicant's need for an accommodation is not obvious, an employer may ask the applicant for reasonable documentation about his / her disability. An employer should make clear to the individual why it is requesting such information (i. e. , to verify the existence of a disability and the need for an accommodation).
If the applicant withdraws his / her request for a reasonable accommodation, the employer cannot continue to insist on obtaining the documentation. Employers must keep all information concerning the medical condition or history of its applicants or employees, including information about psychiatric disability, confidential under the ADA. This includes medical information that an individual voluntarily tells his / her employer. Employers must collect and maintain such information on separate forms and in separate medical files, apart from the usual personnel files. Supervisors and managers may be told about necessary restrictions on the work or duties of the employee and necessary accommodations. Communications With Co-Workers If employees ask questions about a co-worker who has a disability, the employer must not disclose any medical information in response.
An employer also may not tell employees whether it is providing a reasonable accommodation for a particular individual. (A statement that an individual receives a reasonable accommodation probably has a disability because only individuals with disabilities are entitled to reasonable accommodations under the ADA). However, an employer may explain that it is acting for legitimate business reasons or in compliance with federal law. Requesting Reasonable Accommodations (5: 6) An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability unless it can show that the accommodation would impose an undue hardship. An individual (or his / her representative) must let the employer know that s / he needs an adjustment or change at work for a reason related to a medical condition. However, to request accommodation, an individual may use "plain English, " and need not mention the ADA or use the phrase "reasonable accommodation. " Others May Request on Behalf of Employee A family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability.
Requests for reasonable accommodation do not need to be in writing. Employees may request accommodations in conversation or may use any other mode of communication. An individual with a disability is not required to request a reasonable accommodation at the beginning of employment. S/he may request a reasonable ac...
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Research essay sample on Ada And Psychiatric Disabilities
