Addressing Psychiatric Claims Under the ADA

Recently one of your most reliable technicians told you that he is being treated for depression and would like to work a second shift because his medication makes him drowsy in the morning.   Having noticed his tardiness problem the past six months, and not wanting to lose the employee, you readily agree.   Besides there are plenty of second shift openings throughout the company for which he is well qualified.   You give him your approval.   Over the next three months he tells you that he is not getting any interviews and that he missed the annual company-wide job fair because he was on an approved short term medical leave.   You encourage him to keep trying and remind him that you will give him a great reference.  

Have you done enough?   Or could you be accused of failing to participate in the interactive process or providing reasonable accommodation?

Many employers cringe at the mention of the Americans with Disabilities Act ("ADA").   They worry that no matter what they do, it will be wrong - either too little, too much, too early, too late, or just plain misunderstood.   Unfortunately, employers are realistic to anticipate an ADA claim.   The ADA is little more than ten years old and already one of the primary sources of discrimination complaints.   The scenario above is similar to claims that employers have lost in court.   See Gile v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir.1996); and Dean v. Municipality of Metro. Seattle, 104 Wash.2d 627, 708 P.2d 393 (1985)).  

The complexity of the entire ADA is beyond the scope of this article.   Here we will examine only the subset of psychiatric claims, which over the past decade have proven to be particularly difficult for employers.   The task would not seem so daunting if there were only a few such claims, but between 1992-1996 more than 12% of all ADA charges filed with the U.S. Equal Employment Opportunity Commission ("EEOC") were based on psychiatric impairment. (EEOC Enforcement Guidance)   That number was second only to claims based on back injuries. (Accommodating Employees with Psychiatric Disabilities)   Because of the high number of claims, in 1997 the EEOC issued guidance specifically addressing psychiatric illness claims.   Even with the newly published EEOC guidance, if the 17,007 disability claims filed with the EEOC in 1999, almost fifteen percent (15%) were based on some form of psychiatric illness.   (Employment Law Handbook).

Why is dealing with mental health issues such a complex task?   There are many reasons.   Psychiatric illnesses are "hidden" and difficult to see or identify.   Compounding the issue of visibility, there is a common misunderstanding and apprehension on the part of the general population and often a level of embarrassment or shame on the part of those affected.   Combined, these conditions create a situation ripe for confusion and distress.   Finally, one of the effects of the illness may be to impair the individual''s ability to recognize the need for or request such an accommodation from their employer.

Generally the ADA requires employers only to offer reasonable accommodation when asked.   However, constructive knowledge of apparent conditions is sufficient to put an employer on notice.   In the case of physical disabilities it is relatively easy to comply with this requirement.   If a worker comes to work with her arm in a sling or a back brace we can see that.   But what about the normally even-tempered engineer who suddenly snaps back at everyone who speaks, and is heard crying at his desk over lunch?   Is the employer on notice of a mental health problem?   Does it depend how long it goes on?   Do you run the risk of violating the "regarded as" being disabled condition of the ADA by offering accommodation or a referral to the Employee Assistance Program ("EAP")?   If someone is becoming violent, must you offer accommodation?   And, by the way, what is a reasonable accommodation for a mental health problem?   All these questions baffle employers.  

General Guidelines

Once reasonable accommodation is requested, the best defense an employer can mount is to begin the interactive process.   The interactive process is simply conversing with the employee about what accommodation is requested.   This process is ongoing, so you need not have all the answers immediately.   In addition, although the employee´s request is persuasive, the employer retains the final decision on what should be done.   Accommodation need not create an undue hardship.   Nor is an employer required to accommodate a disability not known to exist.

For psychiatric disabilities, almost more than any other disability, accommodation is determined on a case-by-case basis.   What may be appropriate and proper for one person suffering from a depressive disorder may not be sufficient, or may be more than required, for another individual with the same diagnosis.  

Remember, too, that confidentiality is crucial.   While we understand confidentiality regarding an employee´s medical records, how do we quell the workplace dissension that arises when an employee who is not obviously disabled receives apparently preferential treatment, e.g. modified work hours, a special office, additional break time?   How do we manage the office, yet maintain confidentiality?   We can and we must.   More later.

Finally, retaliation is never permitted towards an individual requesting ADA accommodation.

Recognizing The Problem

The first task is recognition.   Pre-employment questions about disabilities are prohibited.   If an applicant requests reasonable accommodation during the hiring process you may ask for documentation if the disability is not obvious.   Once the documentation is received you may begin the interactive process.

If it is a current employee, is the employee, his family, friends, co-workers, or medical provider alerting you to a problem or requesting accommodation?   Regardless of the source, you must proceed as though the employee personally requested the accommodation.   The EEOC holds that employees need only request an accommodation in plain English, not need to say any "magic" words, like "accommodation".   As an example, a supervisor receives this call from an employee''s husband:   "My wife is just not herself lately.   The same thing happened ten years ago but she came out of it eventually."   In this instance you should ask the husband, "Is there something specific that you are needing from the company?"   Thus begins the interactive process.   Document the conversation.

What constitutes constructive notice?   One needs to exercise good judgment.   If an employee´s behavior is dramatically different from their normal behavior, you can ask whether there is something wrong and may make a supervisory referral to the EAP in accordance with your company´s policy and practice.   According to the EEOC a supervisory referral to an EAP is not, on the face of it, an indicator that the employee is "regarded as" being disabled.   The EEOC´s reasoning is that employees are referred to, and use, EAP services for a variety of reasons that are not related to disabilities, e.g., marriage counseling, gambling problems, financial concerns, workplace disputes.   However, if your EAP is solely for persons suffering from a diagnosable mental illness, that safe harbor may not be available to your company.  

If the referral to the EAP is in conjunction with a fitness for duty exam or accusations of being "sick" or "crazy," then the employee may make a legitimate argument that the employer regarded them as disabled.   Remember that you may not require a current employee to undergo a medical or psychiatric exam unless it is in the course of a documented fitness for duty request that is a part of the company´s standard procedure.

Your company EAP may advise you in this process, but be alert to a potential conflict of interest for the mental health professional if they have in the past, or are currently counseling the employee in question.

If an employee poses a direct threat to the health and safety of others, you have no obligation under the ADA to provide accommodation for their psychiatric illness.   However, you cannot react based solely on rumor.   You must investigate the situation.

The Interactive Process

The interactive process required by the ADA is no more than a dialogue with the employee.   This process may be a single conversation, but more probably is a continuing process.   Even if an accommodation has been agreed upon and implemented, keep in touch with the employee regarding suitability of the action and modifications that may be desired by either the employer or the employee.   The amount of time spent with the employee is not as important as the regularity of the contact.   Conduct all such conversations in a private setting (not in the hallway or the elevator) with minimum distractions.   During the interactive process inquire of the employee exactly which of the job functions are barriers to performing the job effectively.   Then discuss accommodation focused toward the individual tasks, not modifying the job as a whole.

Active participation by both parties in the interactive process is key.   If either party fails to participate or cooperate in the process, their chance of prevailing at a claim later is reduced dramatically.  

Requests For Accommodation In The Midst Of The Disciplinary Process

In mental health disabilities the issue often arises at the last minute before discipline or termination.   Just before being fired an employee tells you that the reason for his frequent lethargy on the job is that depression has interfered with his sleep but now that he is taking a new medication the problem should disappear.   You cannot ignore this information or this request for accommodation.   You may ask for medical information to verify the story.   However, this information does not negate past performance or the corrective process to date.   It simply halts the process while an attempt is made to address the underlying issues.   If the employee continues to be unable to perform the essential functions of the job even with accommodation, you may reenter the disciplinary process where you left off.  

Possible Accommodations For Psychiatric Disability
The potential accommodations for psychiatric disabilities are limited only by the creativity and flexibility of the parties involved.   Following are several ideas that may help you begin the process:

·                                       Flexible scheduling.

·                                       Temporary suspension of specific duties.

·                                       Longer or more frequent work breaks.

·                                       Attempts to reduce office noise, interruptions, or distractions.

·                                       Additional time to learn new responsibilities.

·                                       Time off for counseling.

·                                       Supportive employment and job coaches.

·                                       Telecommuting during part of the day.

·                                       Job sharing opportunities.

·                                       Part time work schedules.

What Is Generally An Unreasonable Accommodation?
On the other side of the coin, what can we think of as generally unreasonable request for accommodation?  

·                                       Requiring employee to take medication.

·                                       Eliminating (as opposed to reducing) job stress.

·                                       Eliminating essential job functions.

·                                       Switching supervisors because of a personality conflict.

·                                       Lowering uniformly applied job performance standards.

Dealing With Co-Worker Dissension Arising From Apparent Favoritism
Unfortunately, one of the issues an employer often faces is disruption in the work group arising from a misperception of preferential treatment.   Here are a couple of things to try:

1. Conduct general employee training (as long as it does not identify a particular employee or violate confidentiality) about requirements of the ADA.

2. Share information only as permitted by disabled employee.

3. Address rumors and mistrust directly, even if you must say that you cannot share certain information.

4. Best of all, before such a situation arises, encourage a general workplace environment of trust and tolerance.

Summary

Recognizing and appropriately responding to an employee´s need for accommodation because of a psychiatric illness does not have to be disruptive or burdensome to your company´s operation.   Many times it is our personal discomfort that is a hindrance to dealing effectively with these issues.   Diagnosable mental health conditions strike a majority of the US population at some point in their lives - usually in the form of clinical depression that may last from weeks to years.   Yet these same individuals are often some of the company´s most valuable employees.  In addition, there exists another segment of the population with permanent mental health conditions who can also be reliable and productive workers.   By coming together with respect and a problem-solving attitude, all parties can come away a winner.

EPS Specialized Consultation Can Assist You In This Process
By combining specialties in mental health, law, human resources, mediation, and business management, EPS consultants can help you:

--Recognize whether you, the employer, must offer accommodation.

--Facilitate the interactive process between the employer and the employee.

--Work with employers to develop reasonable accommodation.

--Develop and deliver general employee training to avoid or address co-worker dissension.

--Provide one-to-one sensitivity training for managers.

Sources:

EEOC Enforcement Guidance:   The Americans with Disabilities Act and Psychiatric Disabilities.   US Equal Employment Opportunity Commission.   March 1997

Accommodating Employees with Psychiatric Disabilities: A Practical Guide to ADA Compliance.   1998 Thompson Publishing Group, Inc.

The ADA and People with Mental Illness:   A Resource Manual for Employers.   Zuckerman, Deborah; Debenham, Kathleen; Moore, Kenneth.   Copyright 1993 by the American Bar Association and the National Mental Health Association.

Employment Law Handbook.   Minnesota State Bar Association CLE, May 2000.