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Psychiatric Disabilities and the ADA

Employee claims of discrimination on the basis of disability are being filed in record numbers with the Massachusetts Commission Against Discrimination (MCAD) and the Equal Employment Opportunity Commission (EEOC). Highly publicized damage awards have heightened awareness of non-discrimination laws and are no doubt a factor contributing to this increase. A large and increasing number of disability discrimination claims are based on psychiatric disability.

The EEOC has recently issued psychiatric disability guidelines that address legal issues faced by employers, including, for example, whether an individual who has a psychiatric disability is handicapped within the meaning of the ADA and whether an employer may ask an individual about a psychiatric disability. The EEOC guidelines note that the ADA is intended to combat the myths, fears, and stereotypes upon which employment discrimination against individuals with psychiatric disabilities is based.

Definition of "Disability"

Under the ADA, the term "disability" includes:

  1. a mental impairment that substantially limits one or more of the major life activities of an individual;
  2. a record of such an impairment; or
  3. being regarded as having such an impairment.

The ADA further defines mental impairment to include any mental or psychological disorders such as emotional or mental illness. The EEOC guidelines indicate that the current edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM) may be used as guidance for identifying these disorders. However, the EEOC guidelines clearly state that not all conditions listed in the DSM are disabilities or even impairments for purposes of the ADA. The guidelines also point out that traits or behaviors such as stress, irritability, chronic lateness, and poor judgment are not themselves mental impairments, although they may be linked to mental impairment.

Inquiries about Disabilities

Employers may have questions or concerns regarding the information they may seek about an employee’s or job applicant's mental or emotional illness or psychiatric disability and the need to provide reasonable accommodations to enable such an individual to perform the essential functions of their job. As a general rule, employers are prohibited from asking questions that will elicit information about a disability. As with all physical or mental disabilities, inquiry is permitted only in the following circumstances:

  • During the job application stage, an employer may not ask questions that are likely to elicit information about a disability before making an offer of employment. However, if an applicant asks for reasonable accommodation in the hiring process and the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about his or her disability. An employer should make clear to the applicant why such information is being requested — that is, to verify the existence of a disability and the need for an accommodation. The request for information must be limited to that necessary to accomplish those limited purposes.
  • After an employer extents an offer of employment, the employer may require a medical examination, including a psychiatric examination, or ask questions related to disability, provided that the employer subjects all entering employees in the same job category to the same inquiries or examinations, regardless of disability.
  • During employment, an employer may make a disability-related inquiry or may require a medical examination of an employee if it is job related and consistent with business necessity. The inquiry or examination must be limited in scope to the specific medical condition and its effect on the employee's ability to perform the essential functions of the job, and the employer must reasonably believe, based on objective evidence, that an employee's ability to perform the essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition.

Employers must keep all information concerning the medical condition or medical history of its applicants or employees strictly confidential under the ADA and must collect and maintain such information on separate forms and in separate medical files apart from the usual personnel files.

Requests for Reasonable Accommodation

An employer must provide reasonable accommodation for the known limitation of a qualified individual with a disability unless the employer can show that the accommodation will impose an undue hardship on its operations. The request may come from the employee, or from a family member, friend, health professional, or other representative on behalf of the employee. When the need for accommodation is not obvious, an employer may ask the employee for reasonable documentation about his or her disability or functional limitations. In addition, an employer may request that the employee go to a health care professional of the employer’s choice, at the employer's expense, if the employee initially provides insufficient information and if the examination is job-related and consistent with business necessity.

Reasonable accommodation must be determined on a case-by-case basis and may involve physical changes to the workplace; extra equipment; or changes to workplace policies, procedures or practices. However, a reasonable accommodation does not include eliminating any essential function of the job. An employer should make reasonable efforts both to communicate with the employee and to provide accommodations based on the information that is available.

Conduct

The guidelines make clear that an employer may discipline an individual with a psychiatric disability for violating job-related standards of conduct, so long as the employer would impose the same discipline on an employee without a disability. Nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence or from disciplining an employee who steals or destroys property or engages in other misconduct.

However, while an employer is not required to excuse past misconduct, an employer must make reasonable accommodation of a known disability to enable the employee to meet the conduct standard in the future. As an example, the EEOC guidelines describe an employee with major depression who is often late for work because his medication has side effects that make him extremely groggy in the morning. His job responsibilities are such that timeliness is a job-related standard of conduct, and the employee may be disciplined consistent with business necessity. However, barring undue hardship, the employer must provide reasonable accommodation that will enable this individual to meet the standard of conduct in the future. The EEOC guidelines provide that a modification of the individual’s work schedule so that he is not required to report for work until later in the day may be a reasonable accommodation.

Direct Threat

The EEOC guidelines explain that, under the ADA, an employer may exclude an individual from employment for safety reasons if the employer can show that the individual presents a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by some reasonable accommodation. Whether an individual poses a direct threat also must be determined on a case-by-case basis, based on a reasonable medical judgment of the individual’s present ability to perform safely the functions of the job. To find that an individual with a psychiatric disability poses a direct threat, the employer must identify the specific behavior on the part of the individual that would pose the direct threat.

In sum, employers should remember that psychiatric disabilities, as well as physical disabilities, are covered under the ADA and must be handled on a case-by-case basis in accordance with the law.

(This article appeared in Labor & Employment: A Quarterly Review, Volume 8, Number 1, Palmer and Dodge LLP.)