Including mentally ill in ADA leads to questions
EEOC offers some guidelines to avoid problems
The Americans with Disabilities Act (ADA) has been a thorny issue for occupational health professionals since it was introduced in 1990 and contains many gray areas affecting the everyday operations of occupational health programs.
Many of those difficult questions have been answered in the past six years of trial-and-error application of the ADA, but now there is a whole new crop of questions concerning psychiatric problems.
The Equal Employment Opportunity Commission (EEOC) in Washington, DC, recently announced that mental disabilities are included under the ADA, a point that was long suspected but not clarified by the EEOC. Now that it is known that mental problems are covered, occupational health professionals are left with a long list of questions about how to apply the ADA to mental disabilities in the workplace.
Occupational Health Management posed some of the most common questions to the EEOC and received these replies:
• What is a "mental impairment" under the ADA?
The EEOC defines a mental impairment as "any mental or psychological disorder, such as . . . emotional or mental illness." Examples include major depression, bipolar disorder, anxiety disorders, schizophrenia, and personality disorders.
The DSM-IV is the main reference for what constitutes a mental impairment, but the EEOC points out that not all DSM-IV entries qualify for ADA protection. Drug abuse is specifically excluded, and other things like marital problems are not necessarily a mental impairment.
• Does a mental impairment automatically qualify for ADA protection?
No. As with physical disabilities, the mental impairment must "substantially limit" one or more major life activities.
• Does something like "chronic lateness" qualify as a protected mental disability?
Not by itself. Traits like chronic lateness, irritability, and poor judgment are not mental impairments, but the EEOC notes they may be symptomatic of legitimate mental impairments.
• What major life activities can be limited by mental impairments? Are they the same as the ones limited by physical disabilities?
There is no list of life activities that can be affected, but they include more than what would be affected by physical impairments. Examples include learning, thinking, concentrating, interacting with others, and sleeping.
"Working" also is cited as a major life activity that can be limited by a mental impairment. The EEOC specifically states that you should determine whether any other life activities are affected before considering the impairment’s effect on working. "Working should be analyzed only if no other major life activity is substantially limited by an impairment."
• Does any effect on a life activity suffice?
No. The mental impairment must substantially limit the major life activity. Mild limitations do not trigger the ADA coverage.
• Should medications be considered when deciding if an impairment is severe enough to limit a major life activity?
No. The EEOC is very firm in stating that the assessment must be made without regard to any medication that may lessen the effect of the impairment. So even if the medication provides relief so well that a major life activity is not substantially limited, the person still is covered by the ADA if the life activity is limited when the person does not take medication.
• When does an impairment substantially limit the ability to concentrate?
As with any other assessment of when the life activity is limited, the judgment depends on whether the person is "significantly restricted as compared to the average person in the general population." A worker could be substantially limited by an impairment if he or she is easily and frequently distracted, with the mind drawn to irrelevant sights or sounds or intrusive thoughts, or if his or her mind goes blank frequently.
• When does an impairment substantially limit sleep?
The loss of sleep must be long-term or potentially long-term. As examples, the EEOC says that someone who sleeps two or three hours per night without medication would be substantially limited, but the ADA would not apply to someone who only has trouble getting to sleep or sleeps fitfully.
• Can an employer ask about a history of mental illness, hospitalization, or current mental illness?
Generally, no. There are a handful of situations in which it is acceptable to ask: When the applicant asks for reasonable accommodation during the application process and the disability is not obvious, after the job offer but only if all entering employees are subjected to the same inquiries regardless of disability, and during employment when the inquiry is "job-related and consistent with business necessity."
To be able to ask for the above information, the employer must have a reasonable belief that the employee’s ability to perform essential job functions will be impaired by a mental impairment, or the employee will pose a direct threat due to a medical condition.
• How can co-workers’ queries about a worker with a mental disability be handled without violating the ADA?
The employer must not disclose any medical information, and it also cannot tell co-workers whether a worker is receiving a reasonable accommodation. (Saying he is receiving accommodation is tantamount to saying he has a disability.) That leaves the employer with little to say in response, but the EEOC notes it is acceptable to say that you are "acting for legitimate business purposes" or are complying with federal law.
• Does reasonable accommodation include giving time off from work or a modified work schedule?
Yes. With mental disabilities, altering the normal work schedule may be an important accommodation. Some medications for mental disabilities cause extreme grogginess and lack of concentration in the morning.
• Must an employer consider modifying a workplace policy as a reasonable accommodation?
Yes. For example, a company may prohibit cashiers from drinking beverages at their stations and limiting them to two breaks in an eight-hour shift. If a person’s psychiatric medication causes severe dry mouth, the employer should consider modifying the policy to allow drinks at the work station or more frequent breaks. Such changes are not mandatory; the ADA’s rule against "undue hardship" for the employer still applies.
• As a reasonable accommodation, can an employee request that the employer ensure he or she takes prescribed medication?
No. Employers can not be made responsible for medication monitoring because that does not remove a barrier unique to the workplace; proper medication use also is important off the job.
• Can an employer discipline a person with a disability for an offense that resulted from the disability?
Yes. But the conduct standard must be job-related for the position in question and consistent with business necessity. If so, the employee with a disability can be disciplined just as an employee without a disability. If a disabled worker steals or is violent, for instance, that person can be disciplined without violating the ADA.
If workers are expected to deal politely with customers, a worker can be disciplined for acting rudely regardless of whether there is a disability. But if a warehouse worker comes to work disheveled and acts rude and anti-social with co-workers, prompted by a mental disability, discipline may not be allowed if the employee’s warehouse work is still up to par.
• Can an employer urge or require an employee to take medication?
Not directly. The employer should focus on the employee’s conduct and explain the consequences of continued misconduct. It is the employee’s responsibility to decide whether to take medication.
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