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 (a) a mental impairment that substantially
limits one or more of the major life activities of an individual; (b) a record
of such an impairment; or (c) 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 which 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)