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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).

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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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