EEOC Enforcement Guidance:
The Americans with Disabilities Act and Psychiatric Disabilities
TABLE OF CONTENTS
INTRODUCTION
WHAT IS A PSYCHIATRIC DISABILITY UNDER THE
ADA
DISCLOSURE OF DISABILITY
REQUESTING REASONABLE ACCOMMODATION
SELECTED TYPES OF REASONABLE ACCOMMODATION
CONDUCT
DIRECT THREAT
PROFESSIONAL LICENSING
INTRODUCTION
The workforce includes many individuals with psychiatric disabilities
who face employment discrimination because their disabilities are stigmatized
or misunderstood. Congress intended Title I of the Americans with Disabilities
Act (ADA) [1] to combat such employment discrimination
as well as the myths, fears, and stereotypes upon which it is based.
[2]
The Equal Employment Opportunity Commission ("EEOC" or "Commission")
receives a large number of charges under the ADA alleging employment
discrimination based on psychiatric disability. [3]
These charges raise a wide array of legal issues including, for example,
whether an individual has a psychiatric disability as defined by the
ADA and whether an employer may ask about an individual's psychiatric
disability. People with psychiatric disabilities and employers also have
posed numerous questions to the EEOC about this topic.
This guidance is designed to:
-
facilitate the full enforcement of the ADA with respect to individuals
alleging employment discrimination based on psychiatric disability;
-
respond to questions and concerns expressed by individuals with psychiatric
disabilities regarding the ADA; and
-
answer questions posed by employers about how principles of ADA analysis
apply in the context of psychiatric disabilities. [4]
WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA?
Under the ADA, the term "disability" means: "(a) A physical or 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." [5]
This guidance focuses on the first prong of the ADA's definition of "disability" because
of the great number of questions about how it is applied in the context
of psychiatric conditions.
Impairment
-
What is a "mental impairment" under the ADA?
The ADA rule defines "mental impairment" to include "[a]ny mental
or psychological disorder, such as . . . emotional or mental
illness." [6] Examples of "emotional or mental
illness[es]" include major depression, bipolar disorder, anxiety
disorders (which include panic disorder, obsessive compulsive
disorder, and post-traumatic stress disorder), schizophrenia,
and personality disorders. The current edition of the American
Psychiatric Association's Diagnostic and Statistical Manual of
Mental Disorders (now the fourth edition, DSM-IV) is relevant
for identifying these disorders. The DSM-IV has been recognized
as an important reference by courts [7] and
is widely used by American mental health professionals for diagnostic
and insurance reimbursement purposes.
Not all conditions listed in the DSM-IV, however, are disabilities,
or even impairments, for purposes of the ADA. For example, the
DSM-IV lists several conditions that Congress expressly excluded
from the ADA's definition of
"disability." [8] While DSM-IV covers conditions
involving drug abuse, the ADA provides that the term "individual
with a disability" does not include an individual who is currently
engaging in the illegal use of drugs, when the covered entity
acts on the basis of that use. [9] The DSM-IV
also includes conditions that are not mental disorders but for
which people may seek treatment (for example, problems with a
spouse or child). [10] Because these conditions
are not disorders, they are not impairments under the ADA. [11]
Even if a condition is an impairment, it is not automatically
a "disability." To rise to the level of a "disability," an impairment
must "substantially limit" one or more major life activities
of the individual. [12]
-
Are traits or behaviors in themselves mental impairments?
No. 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. Similarly, traits like irritability,
chronic lateness, and poor judgment are not, in themselves, mental
impairments, although they may be linked to mental impairments.
[13]
Major Life Activities
An impairment must substantially limit one or more major life activities
to rise to the level of a "disability" under the ADA. [14]
-
What major life activities are limited by mental impairments?
The major life activities limited by mental impairments differ
from person to person. There is no exhaustive list of major life
activities. For some people, mental impairments restrict major
life activities such as learning, thinking, concentrating, interacting
with others, [15] caring for oneself, speaking,
performing manual tasks, or working. Sleeping is also a major
life activity that may be limited by mental impairments. [16]
-
To establish a psychiatric disability, must an individual always
show that s/he is substantially limited in working?
No. The first question is whether an individual is substantially
limited in a major life activity other than working (e.g., sleeping,
concentrating, caring for oneself). Working should be analyzed
only if no other major life activity is substantially limited
by an impairment. [17]
Substantial Limitation
Under the ADA, an impairment rises to the level of a disability if it
substantially limits a major life activity.18 "Substantial limitation" is
evaluated in terms of the severity of the limitation and the length of
time it restricts a major life activity.19
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. Relevant
evidence for EEOC investigators includes descriptions of an individual's
typical level of functioning at home, at work, and in other settings,
as well as evidence showing that the individual's functional limitations
are linked to his/her impairment. Expert testimony about substantial
limitation is not necessarily required. Credible testimony from the individual
with a disability and his/her family members, friends, or coworkers may
suffice.
-
When is an impairment sufficiently severe to substantially limit
a major life activity?
An impairment is sufficiently severe to substantially limit a
major life activity if it prevents an individual from performing
a major life activity or significantly restricts the condition,
manner, or duration under which an individual can perform a major
life activity, as compared to the average person in the general
population.20 An impairment does not significantly restrict major
life activities if it results in only mild limitations.
-
Should the corrective effects of medications be considered when deciding
if an impairment is so severe that it substantially limits a
major life activity?
No. The ADA legislative history unequivocally states that the
extent to which an impairment limits performance of a major life
activity is assessed without regard to mitigating measures, including
medications. [21] Thus, 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. [22]
Relevant evidence for EEOC investigators includes, for example,
a description of how an individual's condition changed when s/he
went off medication [23] or needed to have
dosages adjusted, or a description of his/her condition before
starting medication. [24]
-
How long does a mental impairment have to last to be substantially
limiting?
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. [25] Whether
the impairment is substantially limiting is assessed without
regard to mitigating measures such as medication.
Example A: An employee has had major depression
for almost a year. He has been intensely sad and socially withdrawn
(except for going to work), has developed serious insomnia, and
has had severe problems concentrating. This employee has an impairment
(major depression) that significantly restricts his ability to
interact with others, sleep, and concentrate. The effects of
this impairment are severe and have lasted long enough to be
substantially limiting.
In addition, some conditions may be long-term, or potentially
long-term, in that their duration is indefinite and unknowable
or is expected to be at least several months. Such conditions,
if severe, may constitute disabilities. [26]
Example B: An employee has taken medication for
bipolar disorder for a few months. For some time before starting
medication, he experienced increasingly severe and frequent cycles
of depression and mania; at times, he became extremely withdrawn
socially or had difficulty caring for himself. His symptoms have
abated with medication, but his doctor says that the duration
and course of his bipolar disorder is indefinite, although it
is potentially long-term. This employee's impairment (bipolar
disorder) significantly restricts his major life activities of
interacting with others and caring for himself, when considered
without medication. The effects of his impairment are severe,
and their duration is indefinite and potentially long-term.
However, conditions that are temporary and have no permanent
or long-term effects on an individual's major life activities
are not substantially limiting.
Example C: An employee was distressed by the
end of a romantic relationship. Although he continued his daily
routine, he sometimes became agitated at work. He was most distressed
for about a month during and immediately after the breakup. He
sought counseling and his mood improved within weeks. His counselor
gave him a diagnosis of "adjustment disorder" and stated that
he was not expected to experience any long-term problems associated
with this event. While he has an impairment (adjustment disorder),
his impairment was short-term, did not significantly restrict
major life activities during that time, and was not expected
to have permanent or long-term effects. This employee does not
have a disability for purposes of the ADA.
-
Can chronic, episodic disorders be substantially limiting?
Yes. Chronic, episodic conditions may constitute substantially
limiting impairments if they are substantially limiting when
active or have a high likelihood of recurrence 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. [27]
-
When does an impairment substantially limit an individual's ability
to interact with others?
An impairment substantially limits an individual's ability to
interact with others if, due to the impairment, s/he is significantly
restricted as compared to the average person in the general population.
Some unfriendliness with coworkers or a supervisor would not,
standing alone, be sufficient to establish a substantial limitation
in interacting with others. An individual would be substantially
limited, however, 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.
These limitations must be long-term or potentially long-term,
as opposed to temporary, to justify a finding of ADA disability.
Example: An individual diagnosed with schizophrenia
now works successfully as a computer programmer for a large company.
Before finding an effective medication, however, he stayed in
his room at home for several months, usually refusing to talk
to family and close friends. After finding an effective medication,
he was able to return to school, graduate, and start his career.
This individual has a mental impairment, schizophrenia, which
substantially limits his ability to interact with others when
evaluated without medication. Accordingly, he is an individual
with a disability as defined by the ADA.
-
When does an impairment substantially limit an individual's ability
to concentrate?
An impairment substantially limits an individual's ability to
concentrate if, due to the impairment, s/he is significantly
restricted as compared to the average person in the general population.28
For example, 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.
Such limitations must be long-term or potentially long-term,
as opposed to temporary, to justify a finding of ADA disability.
[29]
Example A: An employee who has an anxiety disorder
says that his mind wanders frequently and that he is often distracted
by irrelevant thoughts. As a result, he makes repeated errors
at work on detailed or complex tasks, even after being reprimanded.
His doctor says that the errors are caused by his anxiety disorder
and may last indefinitely. This individual has a disability because,
as a result of an anxiety disorder, his ability to concentrate
is significantly restricted as compared to the average person
in the general population.
Example B: An employee states that he has trouble
concentrating when he is tired or during long meetings. He attributes
this to his chronic depression. Although his ability to concentrate
may be slightly limited due to depression (a mental impairment),
it is not significantly restricted as compared to the average
person in the general population. Many people in the general
population have difficulty concentrating when they are tired
or during long meetings.
-
When does an impairment substantially limit an individual's ability
to sleep?
An impairment substantially limits an individual's ability to
sleep if, due to the impairment, his/her sleep is significantly
restricted as compared to the average person in the general population.
These limitations must be longterm or potentially long-term as
opposed to temporary to justify a finding of ADA disability.
For example, an individual who sleeps only a negligible amount
without medication for many months, due to post-traumatic stress
disorder, would be significantly restricted as compared to the
average person in the general population and therefore would
be substantially limited in sleeping. [30]
Similarly, an individual who for several months typically slept
about two to three hours per night without medication, due to
depression, also would be substantially limited in sleeping.
By contrast, an individual would not be substantially limited
in sleeping if s/he had some trouble getting to sleep or sometimes
slept fitfully because of a mental impairment. Although this
individual may be slightly restricted in sleeping, s/he is not
significantly restricted as compared to the average person in
the general population.
-
When does an impairment substantially limit an individual's ability
to care for him/herself?
An impairment substantially limits an individual's ability to
care for him/herself if, due to the impairment, an individual
is significantly restricted as compared to the average person
in the general population in performing basic activities such
as getting up in the morning, bathing, dressing, and preparing
or obtaining food. These limitations must be long-term or potentially
long-term as opposed to temporary to justify a finding of ADA
disability.
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. Alternatively, the individual may be substantially
limited in working.
DISCLOSURE OF DISABILITY
Individuals with psychiatric disabilities may have questions about whether
and when they must disclose their disability to their employer under
the ADA. They may have concerns about the potential negative consequences
of disclosing a psychiatric disability in the workplace, and about the
confidentiality of information that they do disclose.
-
May an employer ask questions on a job application about history
of treatment of mental illness, hospitalization, or the existence
of mental or emotional illness or psychiatric disability?
No. An employer may not ask questions that are likely to elicit
information about a disability before making an offer of employment.
[31] Questions on a job application about psychiatric
disability or mental or emotional illness or about treatment
are likely to elicit information about a psychiatric disability
and therefore are prohibited before an offer of employment is
made.
-
Whenmay an employer lawfully ask an individual about a psychiatric
disability under the ADA?
An employer may ask for disability-related information, including
information about psychiatric disability, only in the following
limited circumstances:
-
Application Stage. Employers are prohibited from asking
disability-related questions before making an offer of
employment. An exception, however, is if an applicant
asks for reasonable accommodation for the hiring process.
If the need for this accommodation is not obvious, an
employer may ask an applicant for reasonable documentation
about his/her disability. The employer may require the
applicant to provide documentation from an appropriate
professional concerning his/her disability and functional
limitations. [32] A variety of health
professionals may provide such documentation regarding
psychiatric disabilities including primary health care
professionals, [33] psychiatrists,
psychologists, psychiatric nurses, and licensed mental
health professionals such as licensed clinical social
workers and licensed professional counselors. [34]
An employer should make clear to the applicant why it
is requesting such information, i.e., to verify the existence
of a disability and the need for an accommodation. Furthermore,
the employer may request only information necessary to
accomplish these limited purposes.
Example A: An applicant for a secretarial job
asks to take a typing test in a quiet location rather
than in a busy reception area "because of a medical condition." The
employer may make disability-related inquiries at this
point because the applicant's need for reasonable accommodation
under the ADA is not obvious based on the statement that
an accommodation is needed "because of a medical condition." Specifically,
the employer may ask the applicant to provide documentation
showing that she has an impairment that substantially
limits a major life activity and that she needs to take
the typing test in a quiet location because of disability-related
functional limitations. [35]
Although an employer may not ask an applicant if s/he
will need reasonable accommodation for the job, there
is an exception if the employer could reasonably believe,
before making a job offer, that the applicant will need
accommodation to perform the functions of the job. For
an individual with a non-visible disability, this may
occur if the individual voluntarily discloses his/her
disability or if s/he voluntarily tells the employer
that s/he needs reasonable accommodation to perform the
job. The employer may then ask certain limited questions,
specifically:
-
whether the applicant needs reasonable accommodation;
and
-
what type of reasonable accommodation would be needed
to perform the functions of the job. [36]
-
After making an offer of employment, if the employer requires
a post-offer, preemployment medical examination or inquiry.
After an employer extends an offer of employment, the
employer may require a medical examination (including
a psychiatric examination) or ask questions related to
disability (including questions about psychiatric disability)
if the employer subjects all entering employees in the
same job category to the same inquiries or examinations
regardless of disability. The inquiries and examinations
do not need to be related to the job. [37]
-
During employment, when a disability-related inquiry
or medical examination of an employee is "job-related
and consistent with business necessity." [38]
This requirement may be met when an employer has a reasonable
belief, based on objective evidence, that: (1) an employee's
ability to perform essential job functions [39]
will be impaired by a medical condition; or (2) an employee
will pose a direct threat due to a medical condition.
Thus, for example, inquiries or medical examinations
are permitted if they follow-up on a request for reasonable
accommodation when the need for accommodation is not
obvious, or if they address reasonable concerns about
whether an individual is fit to perform essential functions
of his/her position. In addition, inquiries or examinations
are permitted if they are required by another Federal
law or regulation. [40] In these situations,
the inquiries or examinations must not exceed the scope
of the specific medical condition and its effect on the
employee's ability, with or without reasonable accommodation,
to perform essential job functions or to work without
posing a direct threat. [41]
Example B: A delivery person does not
learn the route he is required to take when he makes
deliveries in a particular neighborhood. He often does
not deliver items at all or delivers them to the wrong
address. He is not adequately performing his essential
function of making deliveries. There is no indication,
however, that his failure to learn his route is related
in any way to a medical condition. Because the employer
does not have a reasonable belief, based on objective
evidence, that this individual's ability to perform his
essential job function is impaired by a medical condition,
a medical examination (including a psychiatric examination)
or disability-related inquiries would not be job-related
and consistent with business necessity. [42]
Example C: A limousine service knows
that one of its best drivers has bipolar disorder and
had a manic episode last year, which started when he
was driving a group of diplomats to around-the-clock
meetings. During the manic episode, the chauffeur engaged
in behavior that posed a direct threat to himself and
others (he repeatedly drove a company limousine in a
reckless manner). After a short leave of absence, he
returned to work and to his usual high level of performance.
The limousine service now wants to assign him to drive
several business executives who may begin around-the-clock
labor negotiations during the next several weeks. The
employer is concerned, however, that this will trigger
another manic episode and that, as a result, the employee
will drive recklessly and pose a significant risk of
substantial harm to himself and others. There is no indication
that the employee's condition has changed in the last
year, or that his manic episode last year was not precipitated
by the assignment to drive to around-the-clock meetings.
The employer may make disability-related inquiries, or
require a medical examination, because it has a reasonable
belief, based on objective evidence, that the employee
will pose a direct threat to himself or others due to
a medical condition.
Example D: An employee with depression
seeks to return to work after a leave of absence during
which she was hospitalized and her medication was adjusted.
Her employer may request a fitness-forduty examination
because it has a reasonable belief, based on the employee's
hospitalization and medication adjustment, that her ability
to perform essential job functions may continue to be
impaired by a medical condition. This examination, however,
must be limited to the effect of her depression on her
ability, with or without reasonable accommodation, to
perform essential job functions. Inquiries about her
entire psychiatric history or about the details of her
therapy sessions would, for example, exceed this limited
scope.
-
Do ADA confidentiality requirements apply to information about a
psychiatric disability disclosed to an employer?
Yes. 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. [43]
There are limited exceptions to the ADA confidentiality requirements:
-
supervisors and managers may be told about necessary restrictions
on the work or duties of the employee and about necessary
accommodations;
-
first aid and safety personnel may be told if the disability
might require emergency treatment; and
-
government officials investigating compliance with the ADA
must be given relevant information on request. [44]
-
How can an employer respond when employees ask questions about a
coworker who has a disability?
If employees ask questions about a coworker who has a disability,
the employer must not disclose any medical information in response.
Apart from the limited exceptions listed in Question 15, the
ADA confidentiality provisions prohibit such disclosure.
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 discloses
that the individual probably has a disability because only individuals
with disabilities are entitled to reasonable accommodation under
the ADA. In response to coworker questions, however, the employer
may explain that it is acting for legitimate business reasons
or in compliance with federal law.
As background information for all employees, an employer may
find it helpful to explain the requirements of the ADA, including
the obligation to provide reasonable accommodation, in its employee
handbook or in its employee orientation or training.
REQUESTING REASONABLE ACCOMMODATION
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. [45]
An employee's decision about requesting reasonable accommodation may
be influenced by his/her concerns about the potential negative consequences
of disclosing a psychiatric disability at work. Employees and employers
alike have posed numerous questions about what constitutes a request
for reasonable accommodation.
-
When an individual decides to request reasonable accommodation, what
must s/he say to make the request and start the reasonable accommodation
process?
When an individual decides to request accommodation, the 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. To request accommodation, an individual
may use "plain English" and need not mention the ADA or use the
phrase "reasonable accommodation." [46]
Example A: An employee asks for time off because he
is "depressed and stressed." The employee has communicated a
request for a change at work (time off) for a reason related
to a medical condition (being "depressed and stressed" may be "plain
English" for a medical condition). This statement is sufficient
to put the employer on notice that the employee is requesting
reasonable accommodation. However, if the employee's need for
accommodation is not obvious, the employer may ask for reasonable
documentation concerning the employee's disability and functional
limitations. [47]
Example B: An employee submits a note from a health
professional stating that he is having a stress reaction and
needs one week off. Subsequently, his wife telephones the Human
Resources department to say that the employee is disoriented
and mentally falling apart and that the family is having him
hospitalized. The wife asks about procedures for extending the
employee's leave and states that she will provide the necessary
information as soon as possible but that she may need a little
extra time. The wife's statement is sufficient to constitute
a request for reasonable accommodation. The wife has asked for
changes at work (an exception to the procedures for requesting
leave and more time off) for a reason related to a medical condition
(her husband had a stress reaction and is so mentally disoriented
that he is being hospitalized). As in the previous example, if
the need for accommodation is not obvious, the employer may request
documentation of disability and clarification of the need for
accommodation. [48]
Example C: An employee asks to take a few days off to
rest after the completion of a major project. The employee does
not link her need for a few days off to a medical condition.
Thus, even though she has requested a change at work (time off),
her statement is not sufficient to put the employer on notice
that she is requesting reasonable accommodation.
-
May someone other than the employee request a reasonable accommodation
on behalf of an individual with a disability?
Yes, a family member, friend, health professional, or other representative
may request a reasonable accommodation on behalf of an individual
with a disability. [49] Of course, an employee
may refuse to accept an accommodation that is not needed.
-
Do requests for reasonable accommodation need to be in writing?
No. 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. [50]
-
When should an individual with a disability request a reasonable
accommodation to do the job?
An individual with a disability is not required to request a
reasonable accommodation at the beginning of employment. S/he
may request a reasonable accommodation at any time during employment.
[51]
-
May an employer ask an employee for documentation when the employee
requests reasonable accommodation for the job?
Yes. When the need for accommodation is not obvious, an employer
may ask an employee for reasonable documentation about his/her
disability and functional limitations. The employer is entitled
to know that the employee has a covered disability for which
s/he needs a reasonable accommodation. [52]
A variety of health professionals may provide such documentation
with regard to psychiatric disabilities. [53]
Example A: An employee asks for time off because he
is "depressed and stressed." Although this statement is sufficient
to put the employer on notice that he is requesting accommodation,
[54] the employee's need for accommodation
is not obvious based on this statement alone. Accordingly, the
employer may require reasonable documentation that the employee
has a disability within the meaning of the ADA and, if he has
such a disability, that the functional limitations of the disability
necessitate time off.
Example B: Same as Example A, except that the employer
requires the employee to submit all of the records from his health
professional regarding his mental health history, including materials
that are not relevant to disability and reasonable accommodation
under the ADA. This is not a request for reasonable documentation.
All of these records are not required to determine if the employee
has a disability as defined by the ADA and needs the requested
reasonable accommodation because of his disability-related functional
limitations. As one alternative, in order to determine the scope
of its ADA obligations, the employer may ask the employee to
sign a limited release allowing the employer to submit a list
of specific questions to the employee’s health care professional
about his condition and need for reasonable accommodation.
-
May an employer require an employee to go to a health care professional
of the employer's (rather than the employee's) choice for purposes
of documenting need for accommodation and disability?
The ADA does not prevent an employer from requiring an employee
to go to an appropriate health professional of the employer's
choice if the employee initially provides insufficient information
to substantiate that s/he has an ADA disability and needs a reasonable
accommodation. Of course, any examination must be jobrelated
and consistent with business necessity. [55]
If an employer requires an employee to go to a health professional
of the employer's choice, the employer must pay all costs associated
with the visit(s).
SELECTED TYPES OF REASONABLE ACCOMMODATION
Reasonable accommodations for individuals with disabilities must be determined
on a case-by-case basis because workplaces and jobs vary, as do people
with disabilities. Accommodations for individuals with psychiatric disabilities
may involve changes to workplace policies, procedures, or practices.
Physical changes to the workplace or extra equipment also may be effective
reasonable accommodations for some people.
In some instances, the precise nature of an effective accommodation for
an individual may not be immediately apparent. Mental health professionals,
including psychiatric rehabilitation counselors, may be able to make
suggestions about particular accommodations and, of equal importance,
help employers and employees communicate effectively about reasonable
accommodation. [56] The questions below discuss selected
types of reasonable accommodation that may be effective for certain individuals
with psychiatric disabilities. [57]
-
Does reasonable accommodation include giving an individual with a
disability time off from work or a modified work schedule?
Yes. Permitting the use of accrued paid leave or providing additional
unpaid leave for treatment or recovery related to a disability
is a reasonable accommodation, unless (or until) the employee’s
absence imposes an undue hardship on the operation of the employer’s
business. [58] This includes leaves of absence,
occasional leave (e.g., a few hours at a time), and part-time
scheduling.
A related reasonable accommodation is to allow an individual
with a disability to change his/her regularly scheduled working
hours, for example, to work 10 AM to 6 PM rather than 9 AM to
5 PM, barring undue hardship. Some medications taken for psychiatric
disabilities cause extreme grogginess and lack of concentration
in the morning. Depending on the job, a later schedule can enable
the employee to perform essential job functions.
-
What types of physical changes to the workplace or equipment can
serve as accommodations for people with psychiatric disabilities?
Simple physical changes to the workplace may be effective accommodations
for some individuals with psychiatric disabilities. For example,
room dividers, partitions, or other soundproofing or visual barriers
between workspaces may accommodate individuals who have disability-related
limitations in concentration. Moving an individual away from
noisy machinery or reducing other workplace noise that can be
adjusted (e.g., lowering the volume or pitch of telephones) are
similar reasonable accommodations. Permitting an individual to
wear headphones to block out noisy distractions also may be effective.
Some individuals who have disability-related limitations in concentration
may benefit from access to equipment like a tape recorder for
reviewing events such as training sessions or meetings.
-
Is it a reasonable accommodation to modify a workplace policy?
Yes. It is a reasonable accommodation to modify a workplace policy
when necessitated by an individual's disability-related limitations,
barring undue hardship. [59] For example, it
would be a reasonable accommodation to allow an individual with
a disability, who has difficulty concentrating due to the disability,
to take detailed notes during client presentations even though
company policy discourages employees from taking extensive notes
during such sessions.
Example: A retail employer does not allow individuals
working as cashiers to drink beverages at checkout stations.
The retailer also limits cashiers to two 15-minute breaks during
an eight-hour shift, in addition to a meal break. An individual
with a psychiatric disability needs to drink beverages approximately
once an hour in order to combat dry mouth, a side-effect of his
psychiatric medication. This individual requests reasonable accommodation.
In this example, the employer should consider either modifying
its policy against drinking beverages at checkout stations or
modifying its policy limiting cashiers to two 15-minute breaks
each day plus a meal break, barring undue hardship.
Granting an employee time off from work or an adjusted work schedule
as a reasonable accommodation may involve modifying leave or
attendance procedures or policies. As an example, it would be
a reasonable accommodation to modify a policy requiring employees
to schedule vacation time in advance if an otherwise qualified
individual with a disability needed to use accrued vacation time
on an unscheduled basis because of disability-related medical
problems, barring undue hardship. [60] In addition,
an employer, in spite of a "no-leave" policy, may, in appropriate
circumstances, be required to provide leave to an employee with
a disability as a reasonable accommodation, unless the provision
of leave would impose an undue hardship. [61]
-
Is adjusting supervisory methods a form of reasonable accommodation?
Yes. Supervisors play a central role in achieving effective reasonable
accommodations for their employees. In some circumstances, supervisors
may be able to adjust their methods as a reasonable accommodation
by, for example, communicating assignments, instructions, or
training by the medium that is most effective for a particular
individual (e.g., in writing, in conversation, or by electronic
mail). Supervisors also may provide or arrange additional training
or modified training materials.
Adjusting the level of supervision or structure sometimes may
enable an otherwise qualified individual with a disability to
perform essential job functions. For example, an otherwise qualified
individual with a disability who experiences limitations in concentration
may request more detailed day-to-day guidance, feedback, or structure
in order to perform his job. [62]
Example: An employee requests more daily guidance
and feedback as a reasonable accommodation for limitations associated
with a psychiatric disability. In response to his request, the
employer consults with the employee, his health care professional,
and his supervisor about how his limitations are manifested in
the office (the employee is unable to stay focused on the steps
necessary to complete large projects) and how to make effective
and practical changes to provide the structure he needs. As a
result of these consultations, the supervisor and employee work
out a long-term plan to initiate weekly meetings to review the
status of large projects and identify which steps need to be
taken next.
-
Is it a reasonable accommodation to provide a job coach?
Yes. An employer may be required to provide a temporary job coach
to assist in the training of a qualified individual with a disability
as a reasonable accommodation, barring undue hardship. [63]
An employer also may be required to allow a job coach paid by
a public or private social service agency to accompany the employee
at the job site as a reasonable accommodation.
-
Is it a reasonable accommodation to make sure that an individual
takes medication as prescribed?
No. Medication monitoring is not a reasonable accommodation.
Employers have no obligation to monitor medication because doing
so does not remove a barrier that is unique to the workplace.
When people do not take medication as prescribed, it affects
them on and off the job.
-
When is reassignment to a different position required as a reasonable
accommodation?
In general, reassignment must be considered as a reasonable accommodation
when accommodation in the present job would cause undue hardship64
or would not be possible. [65] Reassignment
may be considered if there are circumstances under which both
the employer and employee voluntarily agree that it is preferable
to accommodation in the present position. [66]
Reassignment should be made to an equivalent position that is
vacant or will become vacant within a reasonable amount of time.
If an equivalent position is not available, the employer must
look for a vacant position at a lower level for which the employee
is qualified. Reassignment is not required if a vacant position
at a lower level is also unavailable.
CONDUCT
Maintaining satisfactory conduct and performance typically is not a problem
for individuals with psychiatric disabilities. Nonetheless, circumstances
arise when employers need to discipline individuals with such disabilities
for misconduct.
-
May an employer discipline an individual with a disability for violating
a workplace conduct standard if the misconduct resulted from
a disability?
Yes, provided that the workplace conduct standard is job-related
for the position in question and is consistent with business
necessity. [67] For example, 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. Thus, an employer may discipline
an employee with a disability for engaging in such misconduct
if it would impose the same discipline on an employee without
a disability. [68] Other conduct standards,
however, may not be job-related for the position in question
and consistent with business necessity. If they are not, imposing
discipline under them could violate the ADA.
Example A: An employee steals money from his
employer. Even if he asserts that his misconduct was caused by
a disability, the employer may discipline him consistent with
its uniform disciplinary policies because the individual violated
a conduct standard -- a prohibition against employee theft --
that is job-related for the position in question and consistent
with business necessity.
Example B: An employee at a clinic tampers with and
incapacitates medical equipment. Even if the employee explains
that she did this because of her disability, the employer may
discipline her consistent with its uniform disciplinary policies
because she violated a conduct standard -- a rule prohibiting
intentional damage to equipment -- that is job-related for the
position in question and consistent with business necessity.
However, if the employer disciplines her even though it has not
disciplined people without disabilities for the same misconduct,
the employer would be treating her differently because of disability
in violation of the ADA.
Example C: An employee with a psychiatric disability works
in a warehouse loading boxes onto pallets for shipment. He
has no customer contact and does not come into regular contact
with other employees. Over the course of several weeks, he
has come to work appearing increasingly disheveled. His clothes
are ill-fitting and often have tears in them. He also has
become increasingly anti-social. Coworkers have complained
that when they try to engage him in casual conversation,
he walks away or gives a curt reply. When he has to talk
to a coworker, he is abrupt and rude. His work, however,
has not suffered. The employer's company handbook states
that employees should have a neat appearance at all times.
The handbook also states that employees should be courteous
to each other. When told that he is being disciplined for
his appearance and treatment of coworkers, the employee explains
that his appearance and demeanor have deteriorated because
of his disability which was exacerbated during this time
period.
The dress code and coworker courtesy rules are not job-related
for the position in question and consistent with business
necessity because this employee has no customer contact and
does not come into regular contact with other employees.
Therefore, rigid application of these rules to this employee
would violate the ADA.
-
Must an employer make reasonable accommodation for an individual
with a disability who violated a conduct rule that is job-related
for the position in question and consistent with business necessity?
An employer must make reasonable accommodation to enable an otherwise
qualified individual with a disability to meet such a conduct
standard in the future, barring undue hardship. [69]
Because reasonable accommodation is always prospective, however,
an employer is not required to excuse past misconduct. [70]
Example A: A reference librarian frequently loses
her temper at work, disrupting the library atmosphere by shouting
at patrons and coworkers. After receiving a suspension as the
second step in uniform, progressive discipline, she discloses
her disability, states that it causes her behavior, and requests
a leave of absence for treatment. The employer may discipline
her because she violated a conduct standard -- a rule prohibiting
disruptive behavior towards patrons and coworkers -- that is
job-related for the position in question and consistent with
business necessity. The employer, however, must grant her request
for a leave of absence as a reasonable accommodation, barring
undue hardship, to enable her to meet this conduct standard in
the future.
Example B: An employee with major depression
is often late for work because of medication side-effects that
make him extremely groggy in the morning. His scheduled hours
are 9:00 AM to 5:30 PM, but he arrives at 9:00, 9:30, 10:00 or
even 10:30 on any given day. His job responsibilities involve
telephone contact with the company's traveling sales representatives,
who depend on him to answer urgent marketing questions and expedite
special orders. The employer disciplines him for tardiness, stating
that continued failure to arrive promptly during the next month
will result in termination of his employment. The individual
then explains that he was late because of a disability and needs
to work on a later schedule. In this situation, the employer
may discipline the employee because he violated a conduct standard
addressing tardiness that is job-related for the position in
question and consistent with business necessity. The employer,
however, must consider reasonable accommodation, barring undue
hardship, to enable this individual to meet this standard in
the future. For example, if this individual can serve the company's
sales representatives by regularly working a schedule of 10:00
AM to 6:30 PM, a reasonable accommodation would be to modify
his schedule so that he is not required to report for work until
10:00 AM.
Example C: An employee has a hostile altercation
with his supervisor and threatens the supervisor with physical
harm. The employer immediately terminates the individual's employment,
consistent with its policy of immediately terminating the employment
of anyone who threatens a supervisor. When he learns that his
employment has been terminated, the employee asks the employer
to put the termination on hold and to give him a month off for
treatment instead. This is the employee's first request for accommodation
and also the first time the employer learns about the employee's
disability. The employer is not required to rescind the discharge
under these circumstances, because the employee violated a conduct
standard -- a rule prohibiting threats of physical harm against
supervisors -- that is job-related for the position in question
and consistent with business necessity. The employer also is
not required to offer reasonable accommodation for the future
because this individual is no longer a qualified individual with
a disability. His employment was terminated under a uniformly
applied conduct standard that is job-related for the position
in question and consistent with business necessity. [71]
-
How should an employer deal with an employee with a disability who
is engaging in misconduct because s/he is not taking his/her
medication?
The employer should focus on the employee's conduct and explain
to the employee the consequences of continued misconduct in terms
of uniform disciplinary procedures. It is the employee's responsibility
to decide about medication and to consider the consequences of
not taking medication. [72]
DIRECT THREAT
Under the ADA, an employer may lawfully exclude an individual from employment
for safety reasons only if the employer can show that employment of the
individual would pose a "direct threat." [73] Employers
must apply the "direct threat" standard uniformly and may not use safety
concerns to justify exclusion of persons with disabilities when persons
without disabilities would not be excluded in similar circumstances.
[74]
The EEOC's ADA regulations explain that "direct threat" means "a significant
risk of substantial harm to the health or safety of the individual or
others that cannot be eliminated or reduced by reasonable accommodation." [75]
A "significant" risk is a high, and not just a slightly increased, risk.
[76] The determination that an individual poses a "direct
threat" must be based on an individualized assessment of the individual's
present ability to safely perform the functions of the job, considering
a reasonable medical judgment relying on the most current medical knowledge
and/or the best available objective evidence. [77]
With respect to the employment of individuals with psychiatric disabilities,
the employer must identify the specific behavior that would pose a direct
threat. [78] An individual does not pose a "direct
threat" simply by virtue of having a history of psychiatric disability
or being treated for a psychiatric disability. [79]
-
Does an individual pose a direct threat in operating machinery solely
because s/he takes medication that may as a side effect diminish
concentration and/or coordination for some people?
No. An individual does not pose a direct threat solely because
s/he takes a medication that may diminish coordination or concentration
for some people as a side effect. Whether such an individual
poses a direct threat must be determined on a case-by-case basis,
based on a reasonable medical judgment relying on the most current
medical knowledge and/or on the best available objective evidence.
Therefore, an employer must determine the nature and severity
of this individual's side effects, how those side effects influence
his/her ability to safely operate the machinery, and whether
s/he has had safety problems in the past when operating the same
or similar machinery while taking the medication. If a significant
risk of substantial harm exists, then an employer must determine
if there is a reasonable accommodation that will reduce or eliminate
the risk.
Example: An individual receives an offer for
a job in which she will operate an electric saw, conditioned
on a post-offer medical examination. In response to questions
at this medical examination, the individual discloses her psychiatric
disability and states that she takes a medication to control
it. This medication is known to sometimes affect coordination
and concentration. The company doctor determines that the individual
experiences negligible side effects from the medication because
she takes a relatively low dosage. She also had an excellent
safety record at a previous job, where she operated similar machinery
while taking the same medication. This individual does not pose
a direct threat.
-
When can an employer refuse to hire someone based on his/her history
of violence or threats of violence?
An employer may refuse to hire someone based on his/her history
of violence or threats of violence if it can show that the individual
poses a direct threat. A determination of "direct threat" must
be based on an individualized assessment of the individual's
present ability to safely perform the functions of the job, considering
the most current medical knowledge and/or the best available
objective evidence. 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. This includes an assessment of the likelihood
and imminence of future violence.
Example: An individual applies for a position with
Employer X. When Employer X checks his employment background,
she learns that he was terminated two weeks ago by Employer
Y, after he told a coworker that he would get a gun and "get
his supervisor if he tries anything again."
Employer X also learns that these statements followed three
months of escalating incidents in which this individual had
had several altercations in the workplace, including one
in which he had to be restrained from fighting with a coworker.
He then revealed his disability to Employer Y. After being
given time off for medical treatment, he continued to have
trouble controlling his temper and was seen punching the
wall outside his supervisor’s office. Finally, he made the
threat against the supervisor and was terminated. Employer
X learns that, since then, he has not received any further
medical treatment. Employer X does not hire him, stating
that this history indicates that he poses a direct threat.
This individual poses a direct threat as a result of his
disability because his recent overt acts and statements (including
an attempted fight with a coworker, punching the wall, and
making a threatening statement about the supervisor) support
the conclusion that he poses a "significant risk of substantial
harm." Furthermore, his prior treatment had no effect on
his behavior, he had received no subsequent treatment, and
only two weeks had elapsed since his termination, all supporting
a finding of direct threat.
-
Does an individual who has attempted suicide pose a direct threat
when s/he seeks to return to work?
No, in most circumstances. As with other questions of direct
threat, an employer must base its determination on an individualized
assessment of the person's ability to safely perform job functions
when s/he returns to work. Attempting suicide does not mean that
an individual poses an imminent risk of harm to him/herself when
s/he returns to work. In analyzing direct threat (including the
likelihood and imminence of any potential harm), the employer
must seek reasonable medical judgments relying on the most current
medical knowledge and/or the best available factual evidence
concerning the employee.
Example: An employee with a known psychiatric
disability was hospitalized for two suicide attempts, which occurred
within several weeks of each other. When the employee asked to
return to work, the employer allowed him to return pending an
evaluation of medical reports to determine his ability to safely
perform his job. The individual's therapist and psychiatrist
both submitted documentation stating that he could safely perform
all of his job functions. Moreover, the employee performed his
job safely after his return, without reasonable accommodation.
The employer, however, terminated the individual's employment
after evaluating the doctor's and therapist's reports, without
citing any contradictory medical or factual evidence concerning
the employee’s recovery. Without more evidence, this employer
cannot support its determination that this individual poses a
direct threat. [80]
PROFESSIONAL LICENSING
Individuals may have difficulty obtaining state-issued professional licenses
if they have, or have a record of, a psychiatric disability. When a psychiatric
disability results in denial or delay of a professional license, people
may lose employment opportunities.
-
Would an individual have grounds for filing an ADA charge if an employer
refused to hire him/her (or revoked a job offer) because s/he
did not have a professional license due to a psychiatric disability?
If an individual filed a charge on these grounds, EEOC would
investigate to determine whether the professional license was
required by law for the position at issue, and whether the employer
in fact did not hire the individual because s/he lacked the license.
If the employer did not hire the individual because s/he lacked
a legally-required professional license, and the individual claims
that the licensing process discriminates against individuals
with psychiatric disabilities, EEOC would coordinate with the
Department of Justice, Civil Rights Division, Disability Rights
Section, which enforces Title II of the ADA covering state licensing
requirements.
REFERENCES
-
42 U.S.C. §§ 12101-12117, 12201-12213 (1994)
(codified as amended).
-
H.R. Rep. No. 101-485, pt. 3, at 31-32 (1990)
[hereinafter House Judiciary Report].
-
Between July 26, 1992, and September 30, 1996,
approximately 12.7% of ADA charges filed with EEOC were based on
emotional or psychiatric impairment. These included charges based
on anxiety disorders, depression, bipolar disorder (manic depression),
schizophrenia, and other psychiatric impairments.
-
The analysis in this guidance applies to federal
sector complaints of nonaffirmative action employment discrimination
arising under section 501 of the Rehabilitation Act of 1973. 29 U.S.C.
§ 791(g) (1994). It also applies to complaints of non-affirmative
action employment discrimination arising under section 503 and employment
discrimination under section 504 of the Rehabilitation Act. 29 U.S.C.
§§ 793(d), 794(d) (1994).
-
42 U.S.C. § 12102(2) (1994); 29 C.F.R. § 1630.2(g)
(1996). See generally EEOC Compliance Manual § 902, Definition of
the Term "Disability,"
8 FEP Manual (BNA) 405:7251 (1995).
-
29 C.F.R. § 1630.2(h)(2) (1996). This ADA
regulatory definition also refers to mental retardation, organic
brain syndrome, and specific learning disabilities. These additional
mental conditions, as well as other neurological disorders such as
Alzheimer's disease, are not the primary focus of this guidance.
-
See, e.g., Boldini v. Postmaster Gen.,
928 F. Supp. 125, 130, 5 AD Cas. (BNA) 11, 14 (D.N.H. 1995) (stating,
under section 501 of the Rehabilitation Act, that
"in circumstances of mental impairment, a court may give weight to
a diagnosis of mental impairment which is described in the Diagnostic
and Statistical Manual of Mental Disorders of the American Psychiatric
Association . . . .").
-
These include various sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, and psychoactive substance
use disorders resulting from current illegal use of drugs. 42 U.S.C.
§ 12211(b) (1994); 29 C.F.R. § 1630.3(d) (1996).
-
42 U.S.C. § 12210(a) (1994). However, 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 (or who have otherwise been successfully
rehabilitated) may be covered by the ADA. Individuals who are
erroneously regarded as engaging in the current illegal use of
drugs, but who are not engaging in such use, also may be covered.
Id. at § 12210(b).
Individuals with psychiatric disabilities may, either as part
of their condition or separate from their condition, engage in
the illegal use of drugs. In such cases, EEOC investigators may
need to make a factual determination about whether an employer
treated an individual adversely because of his/her psychiatric
disability or because of his/her illegal use of drugs.
-
See DSM-IV chapter "Other Conditions That
May Be a Focus of Clinical Attention."
-
Individuals who do not have a mental impairment
but are treated by their employers as having a substantially limiting
impairment have a disability as defined by the ADA because they are
regarded as having a substantially limiting impairment. See EEOC
Compliance Manual § 902.8, Definition of the Term "Disability," 8
FEP Manual (BNA) 405:7282 (1995).
-
This discussion refers to the terms "impairment" and "substantially
limit"
in the present tense. These references are not meant to imply that
the determinations of whether a condition is an impairment, or of
whether there is substantial limitation, are relevant only to whether
an individual meets the first part of the definition of "disability,"
i.e., actually has a physical or mental impairment that substantially
limits a major life activity. These determinations also are relevant
to whether an individual has a record of a substantially limiting
impairment or is regarded as having a substantially limiting impairment.
See id. §§ 902.7, 902.8, Definition of the Term "Disability," 8 FEP
Manual (BNA) 405:7276-78, 7281 (1995).
-
Id. § 902.2(c)(4), Definition of the Term "Disability," 8
FEP Manual (BNA) 405:7258 (1995).
-
42 U.S.C. § 12102(2)(A) (1994); 29 C.F.R.
§ 1630.2(g)(1) (1996). See also EEOC Compliance Manual § 902.3, Definition
of the Term "Disability,"
8 FEP Manual (BNA) 405:7261 (1995).
-
Interacting with others, as a major life
activity, is not substantially limited just because an individual
is irritable or has some trouble getting along with a supervisor
or coworker.
-
Sleeping is not substantially limited just
because an individual has some trouble getting to sleep or occasionally
sleeps fitfully.
-
See 29 C.F.R. pt. 1630 app. § 1630.2(j)
(1996) ("[i]f an individual is not substantially limited with respect
to any other major life activity, the individual's ability to perform
the major life activity of working should be considered . . . . ");
see also EEOC Compliance Manual § 902.4(c)(2), Definition of the
Term "Disability," 8 FEP Manual (BNA) 405:7266 (1995).
-
42 U.S.C. § 12102(2) (1994).
-
See generally EEOC Compliance Manual § 902.4,
Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7262 (1995).
-
20 See 29 C.F.R. § 1630.2(j) (1996).
-
S. Rep. No. 101-116, at 23 (1989); H.R.
Rep. No. 101-485, pt. 2, at 52 (1990); House Judiciary Report, supra
n.2, at 28-29. See also 29 C.F.R. pt. 1630 app. § 1630.2(j) (1996).
-
ADA cases in which courts have disregarded
the positive effects of medications or other treatment in the
determination of disability include Canon v. Clark,
883 F. Supp. 718, 4 AD Cas. (BNA) 734 (S.D. Fla. 1995) (finding
that individual with insulin-dependent diabetes stated an ADA
claim), and Sarsycki v. United Parcel Ser., 862
F. Supp. 336, 340, 3 AD Cas. (BNA) 1039 (W.D. Okla. 1994) (stating
that substantial limitation should be evaluated without regard
to medication and finding that an individual with insulin-dependent
diabetes had a disability under the ADA). Pertinent Rehabilitation
Act cases in which courts have made similar determinations include Liff
v. Secretary of Transp., 1994 WL 579912, at *3-*4 (D.D.C.
1994) (deciding under the Rehabilitation Act, after acknowledging
pertinent ADA guidance, that depression controlled by medication
is a disability), and Gilbert v. Frank, 949 F.2d
637, 641, 2 AD Cas. (BNA) 60 (2d Cir. 1991) (determining under
the Rehabilitation Act that an individual who could not function
without kidney dialysis had a substantially limiting impairment).
Cases in which courts have found that individuals are not substantially
limited after considering the positive effects of medication
are, in the Commission's view, incorrectly decided. See, e.g., Mackie
v. Runyon, 804 F. Supp. 1508, 1510-11, 2 AD Cas. (BNA)
260 (M.D. Fla. 1992) (holding under section 501 of the Rehabilitation
Act that bipolar disorder stabilized by medication is not substantially
limiting); Chandler v. City of Dallas, 2 F.3d 1385,
1390-91, 2 AD Cas. (BNA) 1326 (5th Cir. 1993) (holding under
section 504 of the Rehabilitation Act that an individual with
insulin-dependent diabetes did not have a disability), cert.
denied, 114 S. Ct. 1386, 3 AD Cas. (BNA) 512 (1994).
-
Some individuals do not experience renewed
symptoms when they stop taking medication. These individuals are
still covered by the ADA, however, if they have a record of a substantially
limiting impairment (i.e., if their psychiatric impairment was sufficiently
severe and long-lasting to be substantially limiting).
-
If medications cause negative side effects,
these side effects should be considered in assessing whether the
individual is substantially limited. See, e.g., Guice-Mills
v. Derwinski, 967 F.2d 794, 2 AD Cas. (BNA) 187 (2d Cir. 1992).
-
EEOC Compliance Manual § 902.4(d), Definition
of the Term "Disability,"
8 FEP Manual (BNA) 405:7273 (1995).
-
Id., 8 FEP Manual (BNA) 405:7271.
-
See, e.g., Clark v. Virginia Bd. of
Bar Exam’rs, 861 F. Supp. 512, 3 AD Cas. (BNA) 1066 (E.D.
Va. 1994) (vacating its earlier ruling (at 3 AD Cas. (BNA) 780) that
plaintiff's recurrent major depression did not constitute a "disability" under
the ADA).
-
C.F.R. § 1630.2(j)(ii) (1996); EEOC Compliance
Manual § 902.3(b), Definition of the Term "Disability," 8 FEP Manual
(BNA) 405:7261 (1995).
-
Substantial limitation in concentrating
also may be associated with learning disabilities, neurological disorders,
and physical trauma to the brain (e.g., stroke, brain tumor, or head
injury in a car accident). Although this guidance does not focus
on these particular impairments, the analysis of basic ADA issues
is consistent regardless of the nature of the condition.
-
A 1994 survey of 1,000 American adults reports
that 71% averaged 5-8 hours of sleep a night on weeknights and that
55% averaged 5-8 hours a night on weekends (with 37% getting more
than 8 hours a night on weekends). See The Cutting Edge: Vital
Statistics -- America's Sleep Habits, Washington Post, May
24, 1994, Health Section at 5.
-
See 42 U.S.C. § 12112(d)(2) (1994); 29 C.F.R.
§ 1630.13(a) (1996). See also EEOC Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations at 4, 8 FEP
Manual (BNA) 405:7192 (1995).
-
Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193
(1995).
-
When a primary health care professional
supplies documentation about a psychiatric disability, his/her credibility
depends on how well s/he knows the individual and on his/her knowledge
about the psychiatric disability.
-
Important information about an applicant’s
functional limitations also may be obtained from non-professionals,
such as the applicant, his/her family members, and friends.
-
In response to the employer’s request for
documentation, the applicant may elect to revoke the request for
accommodation and to take the test in the reception area. In these
circumstances, where the request for reasonable accommodation has
been withdrawn, the employer cannot continue to insist on obtaining
the documentation.
-
EEOC Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations at 6-7, 8 FEP
Manual (BNA) 405:7193-94 (1995).
-
If an employer uses the results of these
inquiries or examinations to screen out an individual because of
disability, the employer must prove that the exclusionary criteria
are job-related and consistent with business necessity, and cannot
be met with reasonable accommodation, in order to defend against
a charge of employment discrimination. 42 U.S.C. § 12112(b)(6) (1994);
29 C.F.R. §§ 1630.10, 1630.14(b)(3), 1630.15(b) (1996).
-
42 U.S.C. § 12112(d)(4) (1994); 29 C.F.R.
§ 1630.14(c) (1996).
-
A "qualified" individual with a disability
is one who can perform the essential functions of a position with
or without reasonable accommodation. 42 U.S.C. § 12111(8) (1994).
An employer does not have to lower production standards, whether
qualitative or quantitative, to enable an individual with a disability
to perform an essential function. See 29 C.F.R. pt. 1630 app. § 1630.2(n)
(1996).
-
29 C.F.R. § 1630.15(e) (1996) ("It may be
a defense to a charge of discrimination . . . that a challenged action
is required or necessitated by another Federal law or regulation
. . . .").
-
There may be additional situations which
could meet the "job-related and consistent with business necessity" standard.
For example, periodic medical examinations for public safety positions
that are narrowly tailored to address specific job-related concerns
and are shown to be consistent with business necessity would be permissible.
-
Of course, an employer would be justified
in taking disciplinary action in these circumstances.
-
For a discussion of other confidentiality
issues, see EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 21-23, 8 FEP Manual (BNA) 405:7201-02
(1995).
-
42 U.S.C. § 12112(d)(3)(B), (4)(C) (1994);
29 C.F.R. § 1630.14(b)(1) (1996). The Commission has interpreted
the ADA to allow employers to disclose medical information to state
workers' compensation offices, state second injury funds, or workers'
compensation insurance carriers in accordance with state workers'
compensation laws. 29 C.F.R. pt. 1630 app. § 1630.14(b) (1996). The
Commission also has interpreted the ADA to permit employers to use
medical information for insurance purposes. Id. See also EEOC Enforcement
Guidance: Preemployment Disability-Related Questions and Medical
Examinations at 21 nn.24, 25, 8 FEP Manual (BNA) 405:7201 nn.24,
25 (1995).
-
See 42 U.S.C. §§ 12111(9), 12112(b)(5)(A)
(1994); 29 C.F.R. § 1630.2(o), .9 (1996); 29 C.F.R. pt. 1630 app.
§ 1630.9 (1996).
-
Schmidt v. Safeway, Inc., 864
F. Supp. 991, 3 AD Cas. (BNA) 1141 (D. Or. 1994) (an employee's request
for reasonable accommodation need not use "magic words" and can be
in plain English). See Bultemeyer v. Ft. Wayne Community Schs.,
6 AD Cas. (BNA) 67 (7th Cir. 1996) (an employee with a known psychiatric
disability requested reasonable accommodation by stating that he
could not do a particular job and by submitting a note from his psychiatrist).
-
See Question 21 infra about employers requesting
documentation after receiving a request for reasonable accommodation.
-
In the Commission's view, Miller v.
Nat’l Cas. Co., 61 F.3d 627, 4 AD Cas. (BNA) 1089 (8th Cir.
1995) was incorrectly decided. The court in Miller held
that the employer was not alerted to Miller's disability and need
for accommodation despite the fact that Miller's sister phoned the
employer repeatedly and informed it that Miller was falling apart
mentally and that the family was trying to get her into a hospital.
See also Taylor v. Principal Financial Group, 5 AD Cas.
(BNA) 1653 (5th Cir. 1996).
-
Cf. Beck v. Univ. of Wis.,
75 F.3d 1130, 5 AD Cas. (BNA) 304 (7th Cir. 1996) (assuming,
without discussion, that a doctor's note requesting reasonable
accommodation on behalf of his patient triggered the reasonable
accommodation process); Schmidt v. Safeway, Inc.,
864 F. Supp. 991, 3 AD Cas. (BNA) 1141 (D. Or. 1994) (stating
that a doctor need not be expressly authorized to request accommodation
on behalf of an employee in order to make a valid request).
In addition, because the reasonable accommodation process presumes
open communication between the employer and the employee with
the disability, the employer should be receptive to any relevant
information or requests it receives from a third party acting
on the employee's behalf. 29 C.F.R. pt. 1630 app. § 1630.9 (1996).
-
Although individuals with disabilities are
not required to keep records, they may find it useful to document
requests for reasonable accommodation in the event there is a dispute
about whether or when they requested accommodation. Of course, employers
must keep all employment records, including records of requests for
reasonable accommodation, for one year from the making of the record
or the personnel action involved, whichever occurs later. 29 C.F.R.
§ 1602.14 (1996).
-
As a practical matter, it may be in the
employee’s interest to request a reasonable accommodation before
performance suffers or conduct problems occur.
-
EEOC Enforcement Guidance: Preemployment
Disability-Related Questions and Medical Examinations at 6, 8 FEP
Manual (BNA) 405:7193 (1995).
-
See supra nn.32-34 and accompanying text.
See also Bultemeyer v. Ft. Wayne Community Schs., 6
AD Cas. (BNA) 67 (7th Cir. 1996) (stating that, if employer found
the precise meaning of employee's request for reasonable accommodation
unclear, employer should have spoken to the employee or his psychiatrist,
thus properly engaging in the interactive process).
-
See Question 17, Example A, supra.
-
Employers also may consider alternatives
like having their health professional consult with the employee's
health professional, with the employee's consent.
-
The Job Accommodation Network (JAN) also
provides advice free-ofcharge to employers and employees contemplating
reasonable accommodation. JAN is a service of the President's Committee
on Employment of People with Disabilities which, in turn, is funded
by the U.S. Department of Labor. JAN can be reached at 1-800-ADA-WORK.
-
Some of the accommodations discussed in
this section also may prove effective for individuals with traumatic
brain injuries, stroke, and other mental disabilities. As a general
matter, a covered employer must provide reasonable accommodation
to the known physical or mental limitations of an otherwise qualified
individual with a disability, barring undue hardship. 42 U.S.C. §
12112(b)(5)(A) (1994).
-
29 C.F.R. pt. 1630 app. § 1630.2(o) (1996).
Courts have recognized leave as a reasonable accommodation. See,
e.g., Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538,
3 AD Cas. (BNA) 1636 (7th Cir. 1995) (defendant had duty to accommodate
plaintiff’s pressure ulcers resulting from her paralysis which required
her to stay home for several weeks); Vializ v. New York City
Bd. of Educ., 1995 WL 110112, 4 AD Cas. (BNA) 345 (S.D.N.Y.
1995) (plaintiff stated claim under ADA where she alleged that she
would be able to return to work after back injury if defendant granted
her a temporary leave of absence); Schmidt v. Safeway, Inc.,
864 F. Supp. 991, 3 AD Cas. (BNA) 1141 (D. Or. 1994) ("[A] leave
of absence to obtain medical treatment is a reasonable accommodation
if it is likely that, following treatment, [the employee] would have
been able to safely perform his duties . . . .").
-
42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R.
§ 1630.2(o)(2)(ii) (1996).
-
See Dutton v. Johnson County Bd.,
1995 WL 337588, 3 AD Cas. (BNA) 1614 (D. Kan. 1995) (it was a reasonable
accommodation to permit an individual with a disability to use unscheduled
vacation time to cover absence for migraine headaches, where that
did not pose an undue hardship and employer knew about the migraine
headaches and the need for accommodation).
-
See 29 C.F.R. pt. 1630 app. § 1630.15(b),
(c) (1996).
-
Reasonable accommodation, however, does
not require lowering standards or removing essential functions of
the job. Bolstein v. Reich, 1995 WL 46387, 3 AD Cas.
(BNA) 1761 (D.D.C. 1995) (attorney with chronic depression and severe
personality disturbance was not a qualified individual with a disability
because his requested accommodations of more supervision, less complex
assignments, and the exclusion of appellate work would free him of
the very duties that justified his GS-14 grade), motion for summary
affirmance granted, 1995 WL 686236 (D.C. Cir. 1995). The court in Bolstein noted
that the plaintiff objected to a reassignment to a lower grade in
which he could have performed the essential functions of the position.
1995 WL 46387, * 4, 3 AD Cas. (BNA) 1761, 1764 (D.D.C. 1995).
-
See 29 C.F.R. pt. 1630 app. § 1630.9 (1996)
(discussing supported employment); U.S. Equal Employment Opportunity
Commission, "A Technical Assistance Manual on the Employment Provisions
(Title I) of the Americans with Disabilities Act," at 3.4, 8 FEP
Manual (BNA) 405:7001 (1992) [hereinafter Technical Assistance Manual].
A job coach is a professional who assists individuals with severe
disabilities with job placement and job training.
-
For example, it may be an undue hardship
to provide extra supervision as a reasonable accommodation in the
present job if the employee's current supervisor is already very
busy supervising several other individuals and providing direct service
to the public.
-
42 U.S.C. § 12111(9)(B) (1994). For
example, it may not be possible to accommodate an employee in
his present position if he works as a salesperson on the busy
first floor of a major department store and needs a reduction
in visual distractions and ambient noise as a reasonable accommodation.
See EEOC Enforcement Guidance: Workers' Compensation and the
ADA at 17, 8 FEP Manual (BNA) 405:7399-7400 (1996) (where an
employee can no longer perform the essential functions of his/her
original position, with or without a reasonable accommodation,
because of a disability, an employer must reassign him/her to
an equivalent vacant position for which s/he is qualified, absent
undue hardship).
-
Technical Assistance Manual, supra note
63, at 3.10(5), 8 FEP Manual (BNA) 405:7011-12 (reassignment to a
vacant position as a reasonable accommodation); see also 42 U.S.C.
§ 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1996).
-
42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R.
§ 1630.10, .15(c) (1996).
-
See EEOC Compliance Manual § 902.2, n.11,
Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7259, n.11 (1995) (an employer "does
not have to excuse . . . misconduct, even if the misconduct results
from an impairment that rises to the level of a disability, if it
does not excuse similar misconduct from its other employees"); see
56 Fed. Reg. 35,733 (1991) (referring to revisions to proposed ADA
rule that "clarify that employers may hold all employees, disabled
(including those disabled by alcoholism or drug addiction) and nondisabled,
to the same performance and conduct standards").
-
See 29 C.F.R. § 1630.15(d) (1996).
-
Therefore, it may be in the employee’s interest
to request a reasonable accommodation before performance suffers
or conduct problems occur. See Question 20 supra.
-
Regardless of misconduct, an individual
with a disability must be allowed to file a grievance or appeal challenging
his/her termination when that is a right normally available to other
employees.
-
If the employee requests reasonable accommodation
in order to address the misconduct, the employer must grant the request,
subject to undue hardship.
-
See 42 U.S.C. § 12113(b) (1994).
-
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
-
29 C.F.R. § 1630.2(r) (1996). To determine
whether an individual would pose a direct threat, the factors to
be considered include: (1) duration of the risk; (2) nature and severity
of the potential harm; (3) likelihood that the potential harm will
occur; and (4) imminence of the potential harm. Id.
-
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
-
29 C.F.R. § 1630.2(r) (1996).
-
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
-
House Judiciary Report, supra n.2, at 45.
-
Cf. Ofat v. Ohio Civ. Rights Comm’n,
1995 WL 310051, 4 AD Cas. (BNA) 753 (Ohio Ct. App. 1995) (finding
against employer, under state law, on issue of whether employee who
had panic disorder with agoraphobia could safely return to her job
after disability-related leave, where employer presented no expert
evidence about employee's disability or its effect on her ability
to safely perform her job but only provided copies of pages from
a medical text generally discussing the employee's illness).