Things will never be the same: new guidance on mental illnesses
EEOC says mental, physical disabilities equal under ADA
Hailed by some as a "Bill of Rights" for mentally disabled employees and dismissed by others as a license for employee abuse, a new guidance from the Equal Employment Opportunity Commission (EEOC) promises to change forever the way employers look at employees with mental illnesses.Issued in early May, the guidance seems to communicate an uncomplicated message: The Americans With Disabilities Act of 1990 (ADA) applies to people with psychiatric disabilities just as it applies to people with physical disabilities. The guidance represents the EEOC’s interpretation of the ADA. The courts will decide, on a case-by-case basis, whether an employer’s actions have complied with the law.
The response, however, has been anything but uncomplicated. "The EEOC has cleared up some confusion, but they’ve gone too far in their guidance; they’ve put things in that arguably Congress never contemplated," says Penny Ann Lieberman, Esq., a partner in the national law firm of Jackson, Lewis, Schnitzler and Krupman in New York City. "There are people out there with mental impairments that rise to the level of disability under the ADA, and they need its support if their employer is a jerk, but it allows anyone with an itch of mental illness to come in and say, I’m disabled, accommodate me.’"
But for Lynne DeGrande, ACSW, CEAP, senior consultant to the General Motors Employee Assistance Program and president of a Detroit-based behavioral consulting firm that bears her name, the guidance is a very small step, indeed. "Setting mental disability on a par with physical disability does help to reduce the stigma against mental illness," she concedes. "But you can’t mandate attitudes, and there is and has been for a long time a stigma against those suffering with mental health problems. I believe a lot of it is based on fear and a lack of understanding about these illnesses — or even that they are, indeed, real illnesses and not character defects." (Is mental disability prejudice the "dirty little secret" of the workplace? See story, p. 74.)
Christopher J. Kuczynski, JD, LLM, assistant legal counsel and director of the ADA policy division of the Washington, DC-based EEOC, is not sure what all the fuss is about. "The [ADA] statute itself defines a disability as a physical or mental impairment that substantially limits life activity. It clearly applies to mental disability as well as to physical disability."
While this seems clear to Kuczynski, it does not to employers. In fact, it’s the difficulty many of them have with getting a handle on just what constitutes a mental disability that has the employer community abuzz.
"Under the guidance, the employer has a duty to provide a reasonable accommodation for a disabled employee," notes Lieberman. "That’s easy with a physical disability. If an employee is blind, you can provide a reader or Braille materials. It’s tougher with a psychiatric disability; what’s the accommodation for anxiety disorder?"
Kuczynski recognizes that confusion exists — in fact, it was precisely why the EEOC felt the new guidance was important. "We received a lot of questions, primarily from employers and employee advocates, about how the ADA applies to people with psychiatric disabilities," he reports.
"I do think a lot of employers have a better understanding of what physical disabilities require them to do."
Kuczynski says the EEOC has received a large number of questions about conduct standards. "Employers are concerned that the ADA requires them to accommodate, tolerate, or excuse workplace misconduct — violence, threats, excessive or chronic lateness, or poor performance — after which the employee can then turn around and say, I have a psychiatric disability, and you have to accommodate me,’" he reports.
"But employers are only obligated to accommodate a known disability. The employee needs [medical] documentation of the existence of the disability and of the need for a reasonable accommodation."
Such "reasonable accommodations," says Kuczynski, could be a short leave or simple physical changes in the office to help concentration — such as putting up room partitions if the employee is distracted by sound or visual aspects of his environment or relocating the employee to a different area.
"You might need to modify policies a bit," says Kuczynski. "Let’s say you manage a retail operation, and you have a rule that workers in checkout lines can’t drink beverages. If you have an employee with a psychiatric disability whose medicine causes dry-mouth, a reasonable accommodation might be to modify policy so he can drink a beverage."
A reasonable accommodation also could include job restructuring or a modified work schedule, notes Kuczynski. For example, chronic lateness may be due to medications that make an employee groggy in the morning. "Maybe it’s not possible to get to work at nine, but he can get there by ten. "A reasonable accommodation would be to allow the employee to work from ten to six," he suggests.
Look before you leap
Lieberman fears the new guidance may have raised as many questions as it has answered. Her advice to employers: Proceed with caution."Employers should look before they leap," she says. "Now, when an employee says, I’m stressed out,’ they can’t simply dismiss it."
Stress that is uncontrolled has been traced to serious — and even life-threatening — physical ailments. Ask the employee if he or she has seen a doctor, and ask what the doctor said.
Under the ADA, says Lieberman, the impairment has to substantially limit one or more major life activities (i.e., walking or working). "But the EEOC has added sleeping and eating," she notes. "If a guy can’t eat or sleep, how do you accommodate them? I had a case where an employee was a server in a restaurant. He would screw up orders, forget checks. Near the end of his probationary period, the employer issued him a warning. He shows up the day before he was scheduled to be fired with a doctor’s note saying he has attention deficit disorder which affects his short-term memory."
In this particular case, says Lieberman, the employee "went away," but what if he hadn’t? "It’s possible the employers could show no reasonable accommodation that would allow such an employee to do his job," she offers. "Nobody reminds anyone else about their orders."
But the ADA offers protection for such employers, Kuczynski responds. "We say you can hold employees to performance standards and conduct consistent with business necessity — even if they have a disability," he explains. "The employee has to show not only an impairment but that the impairment affects his life, and that the limitations are substantial."
The guidance also makes allowances for "undue hardship" to the company, which is tailored to the size and nature of the business.
"Let’s say a crane operator works with a group of six people, and the others can’t do their jobs if he’s not there," he says. "Let’s further assume that this employee has a phobia and can’t drive during rush hour. Does the employer have to hold everything up for this employee? The answer is No.’"
Making it better for everyone
In the best of all possible worlds, the new EEOC guidance would benefit both employers and employees.For example, employees may be encouraged to come forward about their mental health problems earlier and, therefore, receive earlier intervention.
"It’s often in the employee’s interest to come forward before job performance standards are violated," says Kuczynski.
This renewed emphasis on mental health also can help employers fatten their bottom lines, says DeGrande. "We know from solid credible research that common mental health problems are very much an economic issue for employers," she asserts. "The annual cost for depression alone is estimated at $44 billion per year.1 There is a strong business case for managing mental health problems in the workplace."
For the best results, DeGrande says, everyone must be on the "same page" when it comes to mental disabilities.
"If we want to address the stigma, we must do it through education," she says. "What we have found, in our experience, has been most successful in helping supervisors, human resource staff, and co-workers better understand the impact of this illness is when we can unite our efforts and successfully address the personal and workplace issues that occur with mental health problems — many of which are similar to physical health problems." (Employee assistance programs can play a significant role in this process. See related story, p. 75.)
[For more information on the EEOC guidance, contact: Christopher J. Kuczynski, Equal Employment Opportunity Commission, 1801 L St. NW, Sixth Floor, Washington, DC 20507. Telephone: (202) 663-4665. Fax: (202) 663-4639. World Wide Web: http://www.EEOC.gov.]
Reference
1. Greenberg PE, Finkelstein SN, Berndt ER. Economic Consequences of Illness in the Workplace. Sloan Management Review Summer 1995, 36:26-37.
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