Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
122244122
label
ADA [Americans with Disabilities Act] Psychiatric Disabilities
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
122244122
contentType
document
title
ADA [Americans with Disabilities Act] Psychiatric Disabilities
citationUrl
collections
Records of the Domestic Policy Council (Clinton Administration)
Diana Fortuna's Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
122244122
levelOfDescription
fileUnit
otherTitles
42-t-7367458-20070143F-Seg3-025-008-2018
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
c2f77398648cf1fa
ocrText
FOIA Number: 2007-0143-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Domestic Policy Council
Series/Staff Member:
Diana Fortuna
Subseries:
OA/ID Number:
12024
FolderID:
Folder Title:
ADA [Americans with Disabilities Act] Psychiatric Disabilities
Stack:
Row:
Section:
Shelf:
Position:
S
97
2
10
3
MAY - 6 1997
TALKING POINTS ON THE EEOC'S ENFORCEMENT GUIDANCE
ON THE ADA AND PSYCHIATRIC DISABILITIES
The ADA covers psychiatric as well as physical disabilities. Based on hundreds of questions it
has been asked by employers and their representatives about the applicability of the ADA to
psychiatric disabilities, the EEOC issued an enforcement guidance on the ADA and Psychiatric
Disabilities on March 25, 1997. The Guidance was designed to provide practical guidance about
employers' and employees' rights and responsibilities under the law. The following addresses
some of the questions which have been raised about the Guidance.
Q.:
What types of workplace rules can employers expect workers with psychiatric disabilities
to follow without having to worry about violating the ADA?
A.:
Employers may maintain workplace conduct rules that are job-related and consistent with
business necessity and may discipline employees with psychiatric disabilities if they
violate these rules, so long as the employer uniformly enforces the rules. Employers do
not have to tolerate conduct such as violence, threats of violence, theft, or destruction of
property even from an employee who claims that he or she engaged in such conduct
because of a psychiatric disability.
Q.:
Doesn't the guidance suggest that employers may have to tolerate rude or anti-social
behavior and sloppy dress to accommodate employees with psychiatric disabilities?
A.:
The guidance contains one example of a situation in which application of a dress code and
rules requiring employees to be courteous to one another might discriminate against an
employee with a psychiatric disability. In the example, the employee works in a
warehouse, has very little contact with members of the public and other employees, and
is performing his job adequately. Due to his psychiatric disability, the employee's dress
and manner have deteriorated over a period of time. The example assumes that the
employer's dress code and rules governing employee courtesy are not job-related and
consistent with business necessity as applied to the warehouse worker, and therefore
concludes that rigid application of the rules to this employee would violate the ADA.
This is not equivalent to saying that employers have to tolerate sloppy dress, rudeness, or
anti-social behavior. Clearly, there will be many instances in which standards governing
dress and employee courtesy will be job-related and consistent with business necessity,
such as when employees have regular contact with one another and with members of the
public. The Commission is certainly not telling employers that they cannot maintain and
enforce dress codes and employee courtesy rules in these situations.
Q.:
What types of reasonable accommodations does an employer have to make for an
employee with a disability?
A.:
Of course, the particular type of reasonable accommodation will depend upon the
employee, the nature of his or her psychiatric disability, and the employer's resources.
However, possible accommodations include:
Making simple physical modifications to the workplace such as, for example,
putting up room dividers or partitions, to minimize visual or audible distractions
for a person whose psychiatric disability makes concentration difficult;
Relocating an employee with a psychiatric disability to a quieter part of the
workplace;
)
Modifying workplace policies, which might mean, for example, making an
exception to a rule prohibiting beverages in the workplace for an employee whose
psychiatric medication causes dry mouth;
Modifying supervisory procedures to allow an individual with a psychiatric
disability to meet performance standards and/or to perform the essential functions
of a job;
Granting leave to an employee with a psychiatric disability so that the employee
can obtain treatment;
Modifying a work schedule by, for example, allowing an employee to work
different hours if the nature of a psychiatric disability necessitates such
)
modification; or
Providing a job coach on a temporary basis.
Employers are not, however, required to do any of the following:
Take any measures that the employer can demonstrate would result in an undue
hardship, that is, significant difficulty or cost;
Eliminate any of a job's essential functions or lower performance standards to
which all employees are held; or
Excuse violations of conduct standards that are job-related and consistent with
business necessity that all employees are required to meet;
Q.:
Do you think that the guidance is overly inclusive in terms of the types of people it would
cover?
A.:
The guidance only covers individuals who have impairments that substantially limit a
major life activity; thus, it is perfectly consistent with the ADA's definition of the term
"disability." The guidance would not cover people who are depressed due to the death
of a family member or friend, people who experience the normal level of stress associated
with a heavy workload, people who occasionally become distracted during meetings, or
people who simply have quick tempers.
2
Q.:
Is an employer obligated to provide a reasonable accommodation based solely on an
employee's assertion that he or she has a psychiatric disability?
A.:
When the need for a reasonable accommodation is not obvious, an employer may certainly
request reasonable documentation of the existence of a psychiatric disability and the need
for the accommodation.
Q.:
Couldn't any employee prove the existence of a psychiatric disability under the guidance,
since documentation of the disability does not have to come from a psychiatrist?
A.:
Though documentation from a psychiatrist may not be necessary in order to establish the
existence of a psychiatric disability, an employer may require reasonable documentation
of the disability from another health care professional, such as a primary care physician.
The guidance recognizes that psychiatric disabilities, their manifestations, and their
treatment are different from one employee to another, and that many employees who have
psychiatric disabilities are not and do not need to be treated by psychiatrists.
People such as psychologists, social workers, family members, and friends may also in
a position to provide valuable additional information about the existence of an employee's
psychiatric disability, how it affects the employees major life activities, and the
appropriateness of certain types of reasonable accommodations.
The request for documentation of a psychiatric disability must be reasonable, but the
documentation offered must give the employer adequate information about the disability
and the need for an accommodation. An employer is not required to accept every piece
of documentation offered by an employee. A note from a family member merely stating
that an employee has a psychiatric disability and needs an accommodation will not by
itself demonstrate the existence of the disability.
Moreover, if the employee does not provide sufficient documentation, the employer may
require the employee to be examined by its own health care professional, provided the
employer bears the cost of the examination.
3
NEWS ARTICLES ON PSYCHIATRIC DISABILITY GUIDANCE
APRIL 30 - MAY 6, 1997
VOLUME I
Issued May 9, 1997
EEOC/OCLA
FAVORABLE/NEUTRAL
B18 THE WALL STREET JOURNAL FRIDAY, MAY 2, 1997
LAW
Firms Have Rights Under Disability Rules
By ANN DAVIS
morning may get to start work later. The
threats of violence, chronic tardiness,
Staff Reporter of THE WALL STREET JOURNAL
agency also suggests employers may have
stealing or property destruction." says
Just because more workers today say
to provide job coaches to mentally ill
Peggy Mastroianni, associate legal coun-
they're stressed and depressed, employers
workers with performance problems. But
sel for the agency.
shouldn't panic.
lawyers say courts may not fully embrace
Indeed. lawyers say courts may not be
Lawyers and management consultants,
every item in the guidelines as "reason-
sympathetic to employees who say their
who have been flooded with questions
able accommodations" under the disabili-
stress-or depression-was triggered by a
about new federal
ties law.
boss's negative job evaluations. And Jay
guidelines calling
LEGAL BEAT
"I think what we are seeing at the court
W. Waks, a lawyer at New York's Kaye,
for broad accommo-
level is a relatively conservative interpre-
Scholer, Fierman, Hays & Handler. says
dations for mentally
tation of what is reasonable," says Garry
stress caused by traumatic personal expe-
III employees. say
Mathiason, an employment attorney with
riences might not rise to the level of a
supervisors can
Littler, Mendelson, Fastiff, Tichy & Math-
disability either. "A terrible divorce? I
take steps to mini-
iason in San Francisco.
don't think that would qualify." he says.
mize their costs and
For example, Mr. Mathiason recom-
He adds that sadness over a death in the
liability under the
mends being flexible about requests for
family is more likely to be considered
Americans with
leaves of absence. But he says courts that
temporary unhappiness rather than a disa-
Disabilities Act.
have heard cases since the Americans with
bility under the law.
Determining whether a claim of mental
Disabilities Act went into effect in 1992
illness is legitimate should be the man-
have found it unreasonable for some em-
ager's first move, say experts. Don't dis-
ployees to demand a job transfer.
miss it out of hand, but don't take it at face
Michael J. Lotito, a lawyer in the San
value. "If an employee says, 'I've got X
Francisco office of Jackson Lewis, says
medical condition and I need you to do Y,'
companies should also be able to order a
say to them, 'Great! Let's look into it,'
person to work overtime if extra hours
says Christopher Bell, a workplace attor-
qualify under the law as an "essential
FRIDAY, MAY 2, 1997
ney with Jackson, Lewis, Schnitzler &
function" of the job. He gave as examples
Krupman in Minneapolis.
"jobs that are seasonal," such as when a
Mr. Bell suggests asking an employee
retailer is readying for a holiday rush to
THE NEW YORK TIMES,
whose doctor has provided a note diagnos-
move goods from warehouses to stores, or
ing mental illness, such as depression. to
when an accounting firm needs employees
submit medical records for review by a
to meet deadlines in the weeks before April
doctor selected by the company. "Say to an
15.
Corrections
employee, 'Gee, you're asking us to treat
But, even if a company views a
you differently from your co-workers. We
worker's request as unreasonable, Mr.
An article on Wednesday about
need more information than a doctor's
Lotito advises making a sincere effort to
new Federal guidelines that prohibit
note,' Mr. Bell advises.
investigate what's feasible. If an employee
employer discrimination against
But don't push too hard: Depending on
wants his workspace walled off and the
qualified workers with mental illness
what state you are in. asking for too much
company says no, for example, supervi-
misstated the date they were issued.
medical detail could violate state privacy
sors should be able to document that they
It was March 25, not this week.
laws or even other federal laws. And the
asked, "How much is that going to cost
new guidelines, issued by the Equal Em-
us? What's the inconvenience to other
ployment Opportunity Commission, say
employees?" he says.
credible testimony from family members
Bosses also shouldn't assume every
and co-workers may be enough to put the
accommodation is prohibitively expensive.
employer on notice that there's a problem.
Showing flexibility with someone briefly
lawyers say.
on medication may make the worker more
Lawyers say the likelihood of an inde-
productive, say occupational psychiatrists.
pendent doctor confirming the diagnosis is
And sometimes, state and federal voca-
high. But they note that employers aren't
tional rehabilitation programs, as well as
obligated to make accommodations for
nonprofit mental health centers, offer
workers who hide their disability. And
funding for temporary job coaches to help
they say employers don't have to give
people get back on their feet, says Susan
mentally ill workers every accommodation
Meisinger, senior vice president of the
they seek.
Society for Human Resource Management
The EEOC guidelines suggest that some
in Alexandria, Va.
workers distracted by noise may be enti-
The EEOC insists the guidelines aren't
tled to soundproof offices, and others on
meant to cripple management. "An em-
medication that makes them groggy in the
ployer does not have to tolerate violence or
THE NEW YORK TIMES OP-ED TUESDAY, MAY 6, 1997
The Mentally Ill Deserve Job Protection
of slackers. Using mental illness as
lack of motivation grounded in men-
James Fallows, in "More Like
By Peter D. Kramer
an excuse, underproductive employ-
tal illness and when with garden-
Us," made the case that the route to
ees will demand concessions over the
variety laziness? Is Jill's prickliness
success for America is the mobiliza-
PROVIDENCE, R.I.
very shortcomings - tardiness, irri-
a result of depression, or is she "just
tion of a diverse work force. The
ome years ago, I was re-
tability, poor judgment - they
not a team player"? Perhaps the
disability act asks that business ex-
S
ferred a patient for an
should be striving to correct. And
professions should be open in saying
tend that effort to a new reservoir of
unusual reason. The
what is not a mental illness, when
that we are in terra incognita, in-
talents.
company Jill worked
millions of Americans take Prozac
volved in a' social experiment that
for was about to fire
or Ritalin?
will demand the development of new
e have passed
her, and the new owner
Some of these objections seem ge-
definitions and measures for pur-
poses of public policy.
W
so fully from
was concerned that Jill might com-
knee-jerk lib-
mit suicide. She had been a compe-
But it is a worthy experiment.
eralism to
tent middle manager. But the new
Work, important for all of us, is cru-
knee-jerk
C.E.O. favored an upbeat style of
Some of my
cial for the mentally III, whose well-
conserva-
management-by-consensus. Jill's
being may depend on the schedule,
tism that any new delineation of civil
dour deliberateness was out of place.
sicker patients
the clarity of tasks and the enforced
rights in the workplace evokes auto-
contact with others. The director of a
Jill was deeply and chronically de-
matic sympathy for employers: How
pressed. She considered suicide every
work scrupulously
community mental health center
will they deal with this new infringe-
where I trained used to say he would
day of her adult life and was pushed to
ment? But a fuller expression of the
the brink by the layoff. She also had
at tasks
trade any doctor for a good employ-
capitalist ideal includes insuring that
ment counselor.
an incisive mind, and in the midst of
each of society's members have the
others avoid.
Society will pay in other ways if
her despair she told me exactly how
chance to lead a productive life. Jus-
employers are not encouraged to ac-
the company was going to fail. Eigh-
tice is sometimes expensive. But, as
commodate the mentally III. The
teen months later, the business en-
the example of Jill indicates, dis-
E.E.O.C. policy should have any
tered bankruptcy. In her current job,
number of side benefits. It will allow
crimination has its own costs, and
Jill is underemployed her gruffness
neric. Doubtless the disability act
mental illness to be discussed openly.
making space for the mentally ill will
and lack of drive cause her to be
will be abused by some workers.
But its most important benefit may
have incidental benefits.
passed over - but any number of
That's the American way; you will
be in the arena where worries are
decision-makers in the company use
know the act is ineffectual if it does
greatest: productivity.
her as an internal consultant when
not lead business groups to publicize
Those who suffer mental illness
there are decisions to be made.
some case where it was applied ab-
include the most productive mem-
I thought of Jill when I heard the
surdly. And, yes, the act may lead
bers of society. Abraham Lincoln,
griping over the new directive by the
some employers to Institute subtle
recurrently depressed, is often men-
Equal Employment Opportunity
screens to prevent the hiring of the
tioned, but mental illness is so com-
Commission that employers must
mentally III, who will now be difficult
mon that examples are numberless.
make accommodations for workers
to fire. Laws to protect the vulnera-
Among more humble workers, the
with mental illnesses. The document
ble always have unintended conse-
mentally Ш are often, like Jill, over-
gives employers detailed guidance
quences of this sort; but surely on
qualified.
about how to apply a policy, already
the whole the act will protect em-
Some of my sicker patients are
in place, that explicitly includes men-
ployment for the mentally III.
workers of extraordinary dedication
tal illness in the scope of the Ameri-
Other objections have more merit.
who, for reasons related to their III-
cans With Disabilities Act. Rather
The mental health professions have
ness - compulsiveness and obses-
than fire a mentally III employee, the
been reluctant to delineate the
sional guilt - work scrupulously at
employer must make efforts to mod-
boundary between health and illness.
tasks others avoid; smart employers
ify the job for the worker.
Scientifically, the task is hard one.
do accommodate their needs. There
The objections are numerous:
Brain scans and chemical tests are
is nothing magical about mental III-
Employers will be unable to get rid
beginning to yield objective markers
ness; it is mostly just a handicap.
of mental illnesses, but the definition
But, as the preponderance of manic-
Peter D. Kramer, a psychiatrist, is
of minor degrees of disability will
depressive illness among artists
the author of "Listening to Prozac"
remain social. And the line between
seems to indicate, the mentally ill
and the forthcoming "Should You
character traits and symptoms can
may bring special perspectives to
Leave?"
be fuzzy: When are we dealing with a
bear.
DAILY NEWS
5-6-97 - -
Safeguards for mentally ill issued
by Rose DeWelf
Daily News Staff Writer
Attention, workers: Don't think
you can got away with showing
up late for work or goofing off
ness, as required by the Ameri-
"Mental illness has always been
just by saying "my mental state
tive employee and if the re-
made me do it"
cans with Disabilities Act.
covered by the ADA." he said.
quest is reasonable to do some-
"A person who, because of ill-
The U.S. Equal Employment Op-
But it doesn't allow just any
thing about it. The guidelines on
ness, is rude and argumentative
crunity Commission yesterday
kind of conduct. The federal law
mental illness and the workplace
won't succeed in sales, but might
usued guidelines to employers on
requires employers to ask employ-
say employers may have to allow
have no problem at all sitting in
Laking reasonable accommode-
ees what they need to enable
some time off from work, shift
an office adding up numbers all
one to workers with mental m-
them to continue to be a produc-
schedules, forgive lateness, re-
day. he said.
-1 was recently told & story
consider assignments even al-
about a company which was hir-
tar physical surroundings if
ing a plant manager.". Block
such remedies can reasonably en-
added. "One of the candidates had
able a worker to perform on the
suffered from manic depression
job.
and was immediately excluded
Moreover, employers are not al.
from consideration. That would
lowed to ask at a job interview if a
be Ulegal and has been illegal
since the ADA was passed."
job candidate has a history of
Attorney Stephen Gold, a veter-
mental illness. And they may not
an plaintiff's lawyer in disability
discrimination Inwsuits. welcom-
refuse to hire an applicant on
ed the new guidelines.
grounds of mental illness un-
Gold says hospitalization for
less the person clearly would be
unable to do job functions That is
mental illness carries a stigma
no different from what the law
even when such treatment on-
requires employers to do to ac-
ables a person to recover quickly.
"But if you have leg problem or
commodate those with physical
disabilities, experts say.
are hit on the head .and need a
"The key word is reasonable,"
week or two in the hospital, no
says Joseph Rogers, deputy execu-
one thinks twice," he said. .
tive director of the Mental Health
Association of Southeastern Penn-
sylvania. Rogers, who has been
hospitalized for manic depres-
sion, served on task forces that
helped to draft the ADA and the
recently issued guidelines.
If a record of Inteness disrupts
an assembly line because other
workers cannot begin until every.
one is present, an employer is not
obliged to accept it, Rogers said.
But if the employee could start a
few minutes later and still get the
job done, the employer would
have to consider adjusting the
time, he said."
Perry Block, president of the
Philadelphia regional chapter of
the Society for Human Resources
Management, said the EEOC is not
requiring anything new.
Times-Union. Rochester. N.Y., Monday. May 5, 1997
EDITORIALS
TIMES-UNION
Founded 1918
STEVEN R BRANDT President u Publisher
THOMAS & CALLINAN Editor U Fist Provident/News
CAROLYN K WASHBURN Managing PAIN
CHARLES G. WILSON Lin. Eforid Page
EVERTON WEEKS
1 BRUCE KLINK Frame
STANLEYN. YOSHIDA U.P. Circularion
RICHARD GREENE F P./Harm Returns
THOMAS FLYNN
JEFFREY A KAPUSCINSKI Descriptions
JAMES c PAUL Contration
MICHAEL) MONSCOUR Productors
A GANNETT NEWSPAPER
Fairness for the mentally ill
The 1990 Americans With Disabilities
But the guidelines give examples of
Act requires that employers make a
the kind of accommodations considered
"reasonable accommodation" for
reasonable, such as scheduling breaks so
employees with mental as well as
that workers with mental illnesses can
physical disabilities.
take their prescriptions.
But the problems that people with
As EEOC Associate Legal Counsel
mental illness face are not always readily
Peggy R. Mastroianni put it, "We try to
apparent. And those who suffer from such
give some common sense answers to
illnesses are often reluctant to discuss the
frequently asked questions."
problems with their supervisors.
A LITTLE FLEXIBILITY can go a
The Equal Employment Opportunity
long way in helping people with even
Comunission has now issued guidelines
severe mental illness stay on the job.
that not only spell out what's "reasonable"
Sensibly, the guidelines also set forth
but should also encourage a more open
procedures for how employers should
discussion between employees and
respond to claims of mental disability.
employers.
What's more, the guidelines should
THE FACT that during the past four
make employees more comfortable
years, 9,216 complaints filed with the
seeking accommodations for their mental
EEOC - almost 13 percent of the total
illness. The emphasis should be on
- alleged discrimination related to
working out acceptable arrangements -
psychological problems shows that greater
based on open discussion, instead of
guidance is needed for implementing the
relying on preconceptions or fears.
law.
Under these guidelines, employees
Employers are not expected to tolerate
with mental illness are more likely to get
disruptive behavior or lower performance
the fair shake in the workplace that the
standards.
1990 legislation promised.
TITLE:
DEALING WITH MENTAL ILLNESSES
COLUMN:
Frank Rich
BYLINE:
Bu FRANK RICH
DATE:
05/04/97
SOURCE: The New Orleans Times-Picayune; NOTP
(Copyright 1997)
If William Styron's memoir of battling depression, "Darkness
Visible," were retold by a plain-spoken baseball player out of a
Ring Lardner story, the voice might sound a little like this:
"I felt very withdrawn. I felt very much to myself. The
sleeping problem was back from the previous week, and there was a
lot of anxiety
I wasn't eating anything. I had a lot of
things going together."
These words are not fiction, however, but were actually spoken
recently by Pete Harnisch, a pitcher for the New York Mets, as he
told reporters why he had joined his team's disabled list. For a
month, Harnisch had been battling a mystery ailment that had
disrupted his sleep, eating patterns and game.
When he gave up three back-to-back home runs on opening day
after having pitched five scoreless innings, he linked his abrupt
exhaustion to nicotine withdrawal; he'd just quit smokeless
tobacco. But resuming tobacco chewing didn't stop his symptoms,
which were then variously attributed to a thyroid condition and
Lyme disease.
Finally a psychological examination cleared up the mystery, and
Harnisch went public. "I'd just like to let everybody know I've
been diagnosed with depression," he said last Friday, in a press
conference by speakerphone from his home, adding: "I never really
thought I'm a different person than normal. I never considered
that.
It's hard to pinpoint exactly why it happened."
Harnisch's poignant description of his symptoms and their
hard-to-penetrate cause will surprise no one familiar with the
dense, incapacitating fogs of clinical depression. What is
surprising is to hear such candor from a professional athlete.
Though we're used to sports stars detailing their
substance-and-spousal-abuse problems, and though other pro athletes
(notably in the NBA) have been sidelined by depression, Harnisch's
forthright articulation of his ailment is unusual in American
public life, period. Irreproachable figures like Styron, Mike
Wallace and Alma Powell talk publicly about their battles with
depression - but not middling 30-year-old major leaguers with
careers on the line.
"It's brave, it's courageous, it's right," says the
psychiatrist Dr. Allan Lans of Harnisch's honesty. "His problem is
ubiquitous; talking about it is rare." Lans, best known for his
counseling of Dwight Gooden in the '80s, is the director of the
Mets' employee assistance program.
"It's understandable for an athlete to get a physical injury
but not a mental injury," he explains. "If a player should get
depressed, the sense is he should do it in the off-season." The
stigma attached to mental illness is still so great that "even the
simple act of going to see a psychiatrist" for a consultation is
difficult for many.
And not just for ballplayers; Lans could be describing Vincent
Foster, the country's most famous recent casualty of untreated
depression, along with millions of others. The Journal of the
American Medical Association reported in January that clinical
depression, which strikes roughly a fifth of Americans at some
point in their lives, still goes mostly undiagnosed or misdiagnosed.
For all the advances in treatment, including the Prozac
generation of anti-depressant drugs, only 27 percent of all cases
get adequate care. The national cost in medical expenses,
absenteeism, lost productivity and suicides is estimated at $43
billion per year.
Last week the Equal Employment Opportunity Commission, acting
under the Americans With Disabilities Act, at last issued
guidelines designed to stop workplace discrimination against those
with depression and other mental illnesses. But that won't end the
discrimination in corporate health plans whose second-class
treatment of psychotherapy also deters many of the sick from
seeking help.
For Harnisch, at least, medical costs will not be a problem.
But the professional cost could be high if the revelation of his
illness sows doubts, however clandestine, about his reliability
when he returns to work.
Whatever happens then, his clear description of his diagnosis
and its treatment is bound to encourage others in and out of
baseball, in Lans' words, "to understand depression better and
treat it more quickly and preserve their careers." Though the
season is still young, it's hard to imagine how any pitcher could
rack up a bigger win.
Frank Rich is a syndicated columnist.
1997, The New York Times News Service
TITLE:
Mental illness guidelines questioned
Some experts and lawyers for employers say the federal rules under
the disabilities act remain unclear and vague.
BYLINE:
Onell R. Soto
CREDIT:
The Press-Enterprise
DATE:
05/03/97
SOURCE:
The Press-Enterprise Riverside, CA; RVSD
(Copyright 1997)
While civil rights advocates say government guidelines explaining
how employers must deal with mentally ill workers are helping to
clear up the law, lawyers who work for employers aren't so sure.
The guidelines, issued a few weeks ago by the federal Equal
Employment Opportunity Commission, are presented in a
question-and-answer format in an effort to explain how the 1990
Americans with Disabilities Act affects workers with mental
illnesses.
The disabilities act requires employers with 15 or more workers
to provide "reasonable accommodation" to disabled workers. An
example might be providing a partition at the workstation of a
mentally ill employee who is easily distracted. The principle is the
same as accommodations for physically disabled workers, such as
building a ramp for someone who uses a wheelchair.
"The ADA has always included everybody," said Nick Swinehart, a
job developer with the Casa Colina Career Development Center in
Pomona and Riverside. However, he said, mental health traditionally
has been low on the priority list, with physical disabilities
getting the most attention. "It's almost as if people with mental
health (problems) are an afterthought."
Swinehart said many solutions for the mentally disabled are
simple and inexpensive. As an example, he described a computer
store's remedy for a schizophrenic stocker.
The worker heard voices and hallucinated, and he needed to
respond. He was a good worker, but his episodes scared other workers
and customers.
To deal with the problem, managers gave the worker permission to
go to a bathroom in the back of the stockroom, close the door, and
address the voices.
"Usually it doesn't cost the employer anything," Swinehart said.
"Usually it's logistical."
The law doesn't require employers to lower work standards or hire
people who can't perform the essential tasks of a job. It doesn't
protect a mentally ill lawyer who wants to work on simple cases
because of depression and a severe personality disorder.
Also, employers don't have to hire or retain workers who may harm
themselves or others. Specifically excluded from protection are
people with sexual behavior disorders, compulsive gamblers,
kleptomaniacs, pyromaniacs, and drug abusers.
But some experts say the guidelines haven't cleared up
everything.
Privacy laws don't allow employers to disclose information about
mental illness to other workers, so those employees may not know why
a person is getting what appears to be preferential treatment.
Also, employers may not realize a worker has a mental disability,
and even if they do, they can't ask about it unless the worker says
something first.
In addition, the law doesn't clearly define "reasonable
accommodation," meaning that it will be interpreted on a
case-by-case basis.
"What is unreasonable for a small medical clinic down the block
might not be unreasonable" to a large hospital, said Barbara Lee
Crouch, a Riverside-based consultant with the Employers Group, a
statewide business organization.
The guidelines are vague, said Arthur Silbergeld, a Los Angeles
employment lawyer. As a result, he said, "almost every type or
condition of illness or injury that an employee may suffer" is
potentially covered by the disability law.
And he pointed to potentially problematic situations, such as an
employer interviewing a prospective worker who was fired from
another company for sleeping on the job.
To avoid allegations of discrimination, the employer needs to
know whether the sleeping incident was caused by a psychiatric
disability. But the employer can't ask about it because doing so
would violate the worker's privacy, Silbergeld said.
"Before the ADA you would have simply concluded, 'I'm not going
to hire this person,' Silbergeld said. "Now you've got to find out
what the nature of the disorder is."
About 13 percent of the discrimination complaints made to the
EEOC under the disability act in the last four years concern mental
illness.
Claudia Center, a civil rights attorney with the Employment Law
Center in San Francisco, said the guidelines aren't new rules. She
said employers who already follow the law won't have to change the
way they do business.
At Rohr Inc.'s Riverside plant personnel director Bryan Ramsey
said the company deals with disability act claims on a case-by-case
basis. He couldn't recall when an employee had asked for a mental
health accommodation.
Where to get advice
o New guidelines on dealing with mentally disabled workers are
available on the Internet at www.eeoc.gov/publicat.html; by calling
(800) 669-3362; or writing the EEOC's Office of Communications and
Legislative Affairs, 1801 L Street, N.W., Washington, D.C. 20507.
o Advice on how to accommodate a worker who is disabled
physically or psychiatrically is available from the Job
Accommodation Network at (800) 232-9675 or the ADA Implementation
Unit of the California Department of Rehabilitation at (916)
322-0251.
TITLE:
Mentally ill face fears of employers
BYLINE: Helen O'Neill
CREDIT: ASSOCIATED PRESS
DATE:
05/04/97
SOURCE:
The San Diego Union-Tribune; SDU
(Copyright 1997)
Jane Moore trembled before the interview, her mind racing with doubts
and fear: Would she get the job if she told them? Would she keep it
if she didn't?
She was eminently qualified, a talented lawyer who understood the
intricacies of the Americans with Disabilities Act with an intimacy
that far outshone other candidates.
But how could she tell prospective employers about the voices that
echo in her head, the sudden sobbing fits, the drugs that make her
drowsy in the morning, the fact she might need days or weeks off for
treatment? How could she announce in a job interview that she was
mentally ill?
"I wanted them to know why I would be good at the job," says Moore,
who still worries that her condition might one day cost her the
position she got 3 1/2 years ago. "If they didn't want to know, then
I didn't want to work for them."
Today, Moore works in the affirmative action office of the University
of Illinois at Chicago. She's 37 and has battled a form of
schizophrenia for about 17 years. Her boss knows about her illness
-- the hospitalizations, the medications, the string of other jobs
she's held and lost.
But the university does make allowances, giving Moore time off when
she needs it, reworking her schedule to accommodate doctors' visits,
allowing her the occasional half-hour just to close the door and
block out the world.
The allowances are relatively simple and inexpensive. They are
similar to those spelled out by the federal government in a recently
issued guidance statement about how employers must accommodate
workers with psychiatric disabilities.
The guidance, prepared by the Equal Employment Opportunity
Commission, emphasizes that employers do not have to lower
performance expectations for workers with mental illness. But, under
the Americans with Disabilities Act, they are required to make
"reasonable accommodations" for workers suffering from such illnesses
as depression, schizophrenia and bipolar disorder, commonly called
manic depression.
"There was some feeling that you couldn't apply normal workplace
rules to people with mental disabilities," says Peggy Mastroianni,
associate legal counsel for the EEOC. "We are saying you can."
Employers are less sure. They agonize over the definition of
"reasonable." They fret about odd behavior and the fragility of
workers with mental problems. They worry they will provoke bouts of
illness if they appear insensitive -- and resentment among co-workers
if they appear to be granting special privileges. Most of all, they
worry about being legally and politically correct.
"Does accommodation mean an employee can be rude? Does it mean a CPA
can ask for a leave of absence at the height of the tax season?" asks
Susan Meisinger, senior vice president of the Society for Human
Resource Management in Alexandria, Va., which represents personnel
directors around the country.
"These are the kinds of questions we are hearing. The EEOC guidance
actually provides very little guidance at all."
Advocates for the mentally ill say such questions stem from ignorance
and fear. Employers have learned to accommodate workers with broken
legs and cancer, they say. They can be equally tolerant of the
millions of workers suffering from illnesses that are more difficult
to document and discuss.
"The fact that my brain doesn't do what it's supposed to do without
medication
why should that be any worse than if I had
Parkinson's disease or diabetes?" asks Lori Rivera, a public
relations professional in Washington, D.C., who suffers from bipolar
disorder.
Rivera, 36, was first diagnosed five years ago, after being
hospitalized for severe depression. She had spent 12 hours under her
desk crying inconsolably because she couldn't write a single
paragraph.
Today, she understands the symptoms, knows how to control them, knows
when to ask for help. Her employers juggle schedules and assignments
to accommodate her.
"There is a real fear in the workplace about saying to your boss `I
have this problem,' " Rivera says. "After ending up in a psychiatric
hospital, I felt an obligation to explain."
Richard Oppe I
AAS
Paragraph.] Shock value gets people to think
stupid Garbles
That
Thstame
If
No
\
Worried about rests hidirg behind ADA
Dr. Certification, Dr. Cer tification, Dr. Certificate
NO Paragraph 6 depressed and stressed
Can get Oc
Argument
Port
It's a
says stressed t Sign of new = Put on alert
disability Line has very street defecter
Everyboy Phrase signet
lses phrice + disability : Eveybody will be probacts under ADA
Lawsaits are castly 11,
hly
if they don't tell you Ny have Menti disads
then anat hable
Force Company to shut down
No, because
that counts as "harm to the company'
Main Complaint Stressed } depressed
too quick
have to link to work 3 have to Shou it's
linked to a disability.
Example of rude only allowable
because he worked where there was noboj
around. This part of code not reasy
for business. {But do we woul to sere
mentaly ill to the dingeans ??}
C
Consistensy
why some accomodated } Some net
Practically
if use exact wording in bill other
worker we bn Code for
"Les disables
P.C
Key words
Equal enforcement
c.e. if @hot, dis, IS bitting people can be
Fired because you'd Fire others who
hit people
3/25/97
Title I
Combat against discrimination of
psychiatric disabled, and myths fears and steveobas
Guidance
facilitate ADA enforcement
respond to questions from psych dis
respond to employers questions
Def. Psychiatric disability
mental impairment
seek treatment
7th
Problem w/ posse or Child
impairment Depression,
disability bi-polar disorders
I
use Dsm+ IV as general grude
BUT
some things Congress explicitly Says quen't covered
AND
must "subs tantally limit"
Def impairment
limits One or more major life activites
IT. learning, thinking, caring for oregone
}
doesn't necessanly gust works, alathey |
If doesn't has one, but bas freah as if to 111 are covered
mla - - ) major life activity
Substantial limitation = Severity t length of time
individual specific not Condition general
Severe prevents (mla)
significanty restricts w.r.t. aug population
:- mild limits
} Medication dues not mean person isn't 1113
time -7 More than several months
9 L- MAYATTACK\ 9
Problems interacting n/others hostility, withdraw!
Eailure to communicate
Disclosune
Employers may not ask questions on job app
Application
only if applicant asks fo accomodation during
hiring process or tells the employer
if he has reason to believe
After Offen
Medical exam (including psych) if all
offerers are subject, Enot recess jobnelates)
During Joh
Job Relate ?
evidence that ability to perform IS 1m paied
poses a direct threat
also in follow up to request for reasonase
accomodated
1:
hal IS a reasonable Accomodation
employer must RA unless can prove would
cause undue hardship Burden of Proof to Esmp
To Requist has to link A work to Men tal Condition
h Len need for accomodation IS not obvious employer
may ask for reasonable documentator
771
31
-7 Loophole what about if knew about
dreatulity before??
I think,
Direct Threat
Vn favorable News
April 30- mg6
Rock Mountain News
-NO -did you read
NIH says In 10 Ameris nus sathers
Some disabilly from diagnosable mental illues
Are tley all entitled to allowere Ave sality
No., Specifically Says in guidelius
1) Recurring, Severely limiting, may has
minor diagnosis
2) Safety in workplace
X
Do Smokers get regularly scheduled Breaks ? Con 1kg steve N
not permitteduie ENICOTIVE dependine IS Clossifiedas
psychiatric disorder
in
hmm probably can Sue, but doubt will win,
what
at what pt. does need to make accomodatienget in the
way of productivity
you can ask for prool 111 bath! E drwig phobias
NYT -mach, - n Reven
Scine Active
TITLE:
EMPLOYERS ADJUST TO MENTAL ILLNESSES -- NEW DOCUMENT
OFFERS ADVICE ON
DISABILITIES LAW
COLUMN: CLOSE-UP
CREDIT:
AP: KNIGHT-RIDDER NEWSPAPERS
DATE:
05/03/97
SOURCE:
The Seattle Times; SETL
ORIGIN: WASHINGTON
(Copyright 1997)
WASHINGTON - Six months ago, Glenn Kennington hired a man to bus
tables at the upscale restaurant he manages in suburban Washington.
The man's psychiatric disability didn't bode well for contact
with customers, so he was assigned to dishwashing. That job proved
too stressful, so Kennington switched him to scrubbing pots and pans.
"He's in his own work area. There are no breakables. It's just
labor. He's found some success there," Kennington said.
Mental-health advocates hope new federal rules will encourage
more employers like Kennington to hire people with psychiatric
disabilities and accommodate their conditions. But company personnel
directors say that while the guidelines are a good first step, they
leave many questions unanswered.
A federal law, the 1990 Americans With Disabilities Act,
requires employers to make a "reasonable accommodation" for workers
with mental as well as physical disabilities.
New guidance on 1990 law
The federal Equal Employment Opportunity Commission recently
issued "guidance" on how the disabilities act applies to employees
with psychiatric problems. The document provides practical
information and case studies for commission investigators, employers
and advocates for the disabled.
"Often, all that's needed are things like a schedule change so
someone can go to an appointment or take medication during a break,"
said Laura Mancuso, a Santa Barbara, Calif., consultant who helps
resolve workplace disputes about the legal rights of employees with
psychiatric problems.
"Some of these changes are things companies have done for a long
time in response to child care or elder-care needs."
But Mancuso said the powerful social stigma attached to mental
illness remains an obstacle for employers. "I've had so many
employers tell me, 'IfI need to build a (wheelchair) ramp, I know
how to do that,' Mancuso said. "But they need assistance in
dealing with people who have psychiatric disabilities."
Some see a conflict
But personnel directors say some of the advice is confusing and
appears to conflict with other laws.
It has been illegal for several years for employers to ask job
applicants about their mental histories. But Ronald Honberg,
director of legal affairs for the National Alliance for the Mentally
III, says companies have been slow to stop the practice because they
falsely assume these applicants will miss work, be violent or not be
able to handle any stress.
While he emphasizes that the majority of mentally ill people are
not violent, Honberg says the guidelines do make it clear that if a
person legitimately poses a threat to the health and safety of other
employees, an employer can let the worker go.
What the law says
The disabilities act forbids employers from discriminating
against an otherwise qualified worker because of physical or mental
disability. Companies with more than 15 employees are required to
make a "reasonable accommodation" for a disabled employee unless it
would create an "undue hardship."
But the law does not require affirmative action for the mentally
ill, nor are employers expected to tolerate drug abuse or disruptive
behavior. Conditions like kleptomania, pyromania - and
sexual-behavior disorders such as pedophilia - are excluded from
protection.
Results so far
Honberg says only 10 percent to 15 percent of people with mental
illnesses have jobs. And the act has not significantly reduced
unemployment among the disabled, one of its original goals. But it
has improved physical access to businesses and public facilities,
and established rights for people with health problems who are
already working. Surveys of executives show that it's largely
accepted in the business community.
Because such terms as "reasonable accommodation" and "undue
hardship" are subjective, applying the law to mentally ill people is
an ongoing process. Things could change with the development of new
treatments, shifts in attitude or court decisions.
Peter Blanck, a lawyer and psychologist at the University of
Iowa, studied Sears' efforts to comply with the disabilities law and
found that it cost the company an average of $45 per case. (Broader
surveys of executives put the cost at $200 per case.) "The
accommodations are typically quite commonsensical," Blanck said.
A job for Michael Epstein
Michael Epstein, 45, works as a grocery clerk for Giant
supermarkets in Maryland's Washington suburbs. Epstein suffers from
a severe speech impediment and major depression.
Giant lets him schedule his hours so he can make regular doctor
appointments. When Epstein started, the company allowed him the help
of a job coach from St. Luke's House, a center for people with
mental disabilities.
Epstein said learning how many items to put in a grocery bag was
hard, but he hasn't been written up for any problems on the job. "I
like meeting the public," he said.
If it wasn't for the disabilities law, "I might not get a job,"
Epstein said.
Do's and don'ts the EEOC recommended
Medications: Employers should try to schedule breaks so workers
with mental illnesses can take their prescriptions, but a company
should not assume the role of monitoring whether medicines are taken.
New drugs have made it much easier to control such illnesses as
schizophrenia.
Environment: Employers should consider accommodations such as
partitions or quiet space for workers who have trouble
concentrating, or allow them to listen to music on a personal
stereo, if practical. Dress codes should not be rigidly enforced for
workers who don't come into contact with customers.
Supervision: Employers should consider switching a worker's
supervisor to alleviate a personality clash, designating a "job
coach" for a worker, or allowing an outside volunteer to help.
Medical information: If a worker claims a mental disability,
employers can ask for medical documentation or ask the employee to
have an examination. But employers cannot ask about mental illness
on job applications. Questions about mental illness are permitted in
a pre-employment physical, only if asked of all new workers. Medical
information must be kept strictly confidential.
Knight-Ridder News Services
TITLE:
Mental Health Advocates Support Rule
CREDIT: AP
DATE:
05/02/97
SOURCE:
Tulsa World; TUL
(Copyright 1997)
WASHINGTON (AP) -- Six months ago, Glenn Kennington hired a
man to bus tables at the upscale restaurant he manages in suburban
Washington.
The man's psychiatric disability didn't bode well for contact
with customers, so he was assigned to dish washing. That job proved
too stressful, so Kennington switched him to scrubbing pots and
pans.
"He's in his own work area. There are no breakables. It's just
labor. He's found some success there," said Kennington, the general
manager of Shelly's Woodroast in Rockville, Md.
Mental health advocates hope new federal rules will encourage
more employers like Kennington to hire people with psychiatric
disabilities and accommodate their conditions. But company
personnel directors say that although the guidelines are a good
first step, they leave many questions unanswered.
The 38 pages of guidelines were issued March 25 by the Equal
Employment Opportunity Commission, which wants to make it clear
that the Americans with Disabilities Act covers people with mental
disabilities -- such as manic depression, anxiety disorders and
schizophrenia -- as well as those with physical impairments.
Mental health experts say the EEOC guidelines give employers
practical answers to questions like "When can employers legally ask
about a psychiatric disability?" or "How far do employers need to
go in accommodating these employees?"
But, although happy to receive some direction on this often
tight-lipped subject, personnel directors say some of the advice is
confusing and appears to conflict with other laws.
The guidelines say employers do not have to accept less from
workers with psychiatric disabilities, but might be required, for
example, to change work hours for employees on medication, erect
cubicles around employees who have trouble concentrating, or let
workers wear earphones to block noise.
Ronald Honberg, the director of legal affairs for the National
Alliance for the Mentally III, says only 10 percent to 15 percent
of people with mental illnesses have jobs.
It has been illegal for several years for employers to ask job
applicants about their mental histories. But Honberg says companies
have been slow to stop the practice because they falsely assume
these applicants will miss work, be violent or not be able to
handle any stress on the job.
While he emphasizes that the majority of mentally ill people are
not violent, Honberg says the guidelines do make it clear that if a
person legitimately poses a threat to the health and safety of
other employees, an employer can let the worker go.
Michael Lotito, counsel to the Society for Human Resource
Management, which represents more than 80,000 company personnel
directors, says the guidelines are not that clear and also are not
easily reconciled with other federal laws, such as the Family and
Medical Leave Act.
For instance, when and what employers may ask about why leave is
needed and the paperwork required can differ depending on whether
disability or family and medical leave rules are followed.
LOS ANGELES TIMES/WASHINGTON EDITION
FRIDAY, MAY 2, 1997
WASHINGTON EDITION
BUSINESS
Recognizing Rights of Mentally Disabled
By STUART SILVERSTEIN
TIMES STAFF WRITER
Disability Claims
A
fter Michael L. Keller started receiving medical treat-
ment for manic depression, he asked his longtime
Since the Americans With Disabilities Act took effect
employer for an adjustment in his work routine. He
in U.S. workplaces in July 1992, the second most com-
sought a switch from his rotating schedule as a lab technician,
mon type of job discrimination under the law has been
regularly flipping between day shifts and night shifts, to work-
bias tied to emotional or psychiatric impairments.
ing days only.
Some experts believe these claims will increase now
Even though the request was based on his doctor's opinion
that the U.S. Equal Employment Opportunity Commis-
that he needed a regular sleep-
sion has issued workplace guidelines for psychiatric
ing pattern, Keller was turned
disabilities. Of the 72,687 claims from July 26, 1992, to
down. And soon afterward, in
Sept. 30, 1996, these disabilities were most often cited:
October 1992, he was fired.
Percent
"I was totally flabbergasted,"
Impairment
Claims
of total*
QA
said Keller, now 48. He said he
Back
13,243
18.2%
couldn't believe that his former
Emotional/psychiatric
9,216
12.7
employer, a Union Carbide
chemical plant in Louisiana,
Neurological
8,201
11.3
"would do something like this"
Extremities
6,562
9.0
to him. "They said they would
work with me," he said.
Heart
3,003
4.1
Thanks to a lawsuit filed by federal authorities under the
Diabetes
2,605
3.6
Americans With Disabilities Act, last year Keller won a private
Substance abuse
2,437
3.3
financial settlement said by sources familiar with the case to
exceed $100,000. The company, which employed Keller for 14
Hearing
2,094
2.9
years, declined to comment.
Vision
1,911
2.6
Meanwhile, though, thousands of other people with mental
disorders claim they face discrimination in the workplace
Blood disorders (including HIV)
1,883
2.6
because of their disabilities. And employers have continued to
Cancer
1,706
2.3
wonder about their responsibilities in such situations ever since
Asthma
1,266
1.7
the ADA, as the landmark disabilities act is known, took effect
*Note: Numbers do not add up to 100 percent because additional categories are not listed.
in the American workplace in 1992.
Source: Equal Employment Opportunity Commission
Please see DISABILITY, B6
Los Angeles Times
DISABILITY: Dealing With Employees With Mental Disorders
Continued from B3
more "major life activities" of an
provide employees with written
the dress code and courtesy rules
co-worker that he would find a gun
which has to be dealt with in the
To clear up some of that confu-
individual. These impairments can
comments if they can't follow oral
are not significant to the job. Con-
and "get his supervisor If he tries
workplace?"
sion, officials of the U.S. Equal
be mental or psychological disor-
instructions.
sequently, If the warehouse
anything again." The EEOC says
Management lawyers also fret
Employment Opportunity Com-
ders Including schizophrenta, major
Q: Can employers discipline
employee's work performance has
that worker poses a direct threat,
that employers will be caught
mission last month issued guide-
depression and bipolar disorder, as
workers with psychiatric disabili-
not suffered and the
among other reasons, because of his
between conflicting requirements
lines for applying the ADA in
well as panic, obsessive compulsive
ties if their misconduct stems from
offensive conduct is linked to a
past overt acts, the failure of medi-
to accommodate workers with
psychiatric disability cases.
or post-traumatic stress disorders.
a disability?
cal treatment to curb his violent
psychiatric disability. the worker
mental disorders while maintaining
Although courts are not bound by
Not covered by the law, however,
A: Yes, If the offending action by
behavior and the short amount of
is behavior stemming from the Ille-
should be given some leeway and
confidentiality about their condi-
such guidelines, they often influ-
the disabled employee also would
time since he was fired.
ence judges' decisions. They also'
gal use of drugs. Neither is stress,
"rigid application" of discipline
tions. And they say that at a time
On the other hand, an employee
when the economy demands an
provide employers with paths they
unless it is shown to be tied to a
who has attempted suicide is not
Increasing amount of teamwork,
can follow to try to avoid costly
specific mental impairment.
considered a direct threat. If some-
employees will resist collaborating
Iltigation-even though, manage-
Q: What are examples of reason-
ment lawyers contend, legal dis-
Although courts are not bound by them, the U.S. Equal
one attempts suicide but then
with co-workers regarded as
able accommodations that employ-
receives medical care and is said by
antisocial.
putes will remain a big problem
ers might provide?
Employment Opportunity Commission guidelines often
a doctor to be able to safely return
Advocates for the mentally dis-
even with the guidelines.
At The guidelines call for
Influence Judges' decisions. They also help employers
to work, there in no justification to
abled, however, say the broad pro-
Some of the EEOC's guidance is
accommodations to be determined
bar the employee.
tection promised by the ADA has.
basic and in line' with the ADA
on a case-by-case basis. They can
avoid costly litigation.
Q: What problems do critics see
been unfulfilled because of the
requirements for workers with
Include physical changes in the
with the ADA guidelines?
narrow way that judges and
physical disabilities. For Instance,
workplace such as setting up room
employers have interpreted the
A: Some management lawyers
employers are required to provide
law.
dividers or other types of sound-
believe the law and the guidelines
"reasonable accommodations" for
proofing to help workers who have
call for discipline If someone else
should be waived.
are Impractical and will lead to
"There's still a tremendous
workers with psychiatric or physi-
problems maintaining their
did IL For example, if an employee
Q: When can an employer refuse
even more costly litigation. Chris-
stigma attached to people with
cal disabilities unless such mea-
concentration.
steals money from the company,
topher G. Bell, a management law-
mental disabilities," said Jim Preis,
to hire someone based on the
sures would "Impose an undue
Accommodations also Include
that worker can be fired or other-
executive director of Mental Health
person's history of violence?
yer in Minneapolis and an authority
hardship" on the employer.
scheduling changes such as allow-
wise disciplined just as any other
on the ADA, worries that the
Advocacy Services Inc., a nonprofit
A: Employers can reject job
In addition, companies almost
Ing an employee to start work later
employee would.
guidelines open the door for
public Interest law firm based in
applicants who pose a "direct
Los Angeles. "Even though the
always are barred from asking job
in the day or providing extra unpaid
On the other hand, the EEOC
threat" to themselves or others at
employees who simply don't get
ADA is clear and these guidelines
applicants who have not yet been
time off. The guidelines point out
guidelines cite the hypothetical
work. Employers have to be able to
along well with co-workers to hunt
are even clearer
It's still com-
offered employment about whether
that some medications for psychi-
example of an employee with a
specify the behavior that poses the
for doctors who can declare them
monplace that a person with a psy-
they suffer from mental or physical
atric disabilities cause extreme
psychiatric disability who works In
threat, however. As an example of a
psychiatrically disabled.
chiatric disability. just because of
disorders.
grogginess and lack of concentra-
a warehouse and has no contact
job applicant who could be turned
"It's very difficult when you're
that disability, will not be offered a
Here are some of the key points
tion in the morning. In Keller's
with customers and little contact
down on those grounds, the guide-
talking about a mental Impairment
job."
raised by the new guidelines:
case, he found that he could not
with other employees. It also
lines cite the example of a worker
or disorder to determine whether
Until now, "disability under the
sleep well when he worked long
assumes that this employee has
Involved In three months of esca-
we're talking about fact or fiction,"
ADA has come to mean physical
What is a psychiatric disability
night shifts once he started taking
been coming to work looking
lating incidents on the job who then
Bell said.
disability," said Paul Steven Miller,
under the ADA?
lithium for his manic depression.
Increasingly disheveled and acting
received medical treatment but still
"In the person just a jerk and try-
an EEOC commissioner. By seroing
Other options Include providing a
increasingly rudely toward co-
couldn't control his temper. Final-
ing to cover for It by getting a note
in on psychiatric disabilities, he
A
It is any mental Impairment
temporary job coach or modifying
workers, in violation of company
ly, two weeks ago, that hypotheti-
from the doctor? Or do they have a
added, "this moves us a giant leap
that substantially limits one or
workplace procedures to, say,
rules. In such a case, the EEOC says
cal worker was fired after telling a
legitimate, scrious mental disorder
forward."
NEWS ARTICLES ON PSYCHIATRIC DISABILITY GUIDANCE
APRIL 30 - MAY 19, 1997
VOLUME II
Issued May 16, 1997
EEOC/OCLA
FAVORABLE/NEUTRAL
May 19, 1997 FEDERAL
Dealing With Mental Disability
By Leigh Rivenbark
Federal Times Staff Writer
F.Y.I.
The policies mandating tidiness
and courtesy are not directly relat-
The usually reliable warehouse
ed to his job of moving boxes.
worker shows up one morning in
The EEOC guidelines, pub-
A manager who knows about an
torn, dirty clothes. He sometimes
lished March 25, are available
employee's psychiatric disability
yells at co-workers while he loads
by calling:
cannot disclose any information
boxes onto pallets.
about that disability. Privacy laws
The changes persist, and the su-
(800) 669-3362
make such disclosures illegal.
pervisor prepares to discipline the
Accommodation for a psychiatric
man. Workplace policy says em-
disability may include physical
ployees must dress neatly and
changes, such as giving the em-
treat co-workers courteously.
National Alliance for the Mentally
ployee barriers like partitions to
Then the worker tells the super-
III. "It shouldn't be too hard for
screen out distracting movements.
visor that his doctor diagnosed him
agencies to meet these standards."
Accommodation can also extend
as depressed and that the depres-
Psychiatric disabilities can in-
to changing policies. For example,
sion made him stop taking care of
clude depression, manic depression,
in a workplace where employees
himself and start lashing out at
anxiety disorders such as post-trau-
are not allowed to have drinks at
others. He's started taking medica-
matic stress disorder, schizophrenia
their work stations, the employer
tion and wants another chance.
and personality disorders.
might permit an employee to keep
The man is asking for accommo-
Employers can discipline mentally
drinks handy because dry mouth is
dation for a psychiatric illness, and
disabled workers for conduct viola-
a side effect of medication.
according to the Equal Employ-
tions stemming from their disabili-
Supervisors might also need to
ment Opportunity Commission's
ties, but only if the violation breaks
adjust their methods, according to
new guidelines, the supervisor
a standard that is job-related.
EEOC.
must accommodate him.
For example, if an employee
An employee whose disability
The guidelines, apply to federal
steals money and then blames the
limits concentration may need
agencies under the 1973 Rehabili-
theft on a mental disability, the
more daily guidance and feedback
tation Act, according to EEOC.
employer still could discipline him.
from supervisors.
"The federal government has
The prohibition against employee
EEOC said reassignment to an-
done over the years a fairly good job
theft is job-related and necessary
other job must be considered a rea-
of providing jobs to disabled em-
to business, EEOC said.
sonable accommodation when the
ployees, including people with men-
But the warehouse worker who
present job "would cause undue
tal disabilities," said Ronald Hon-
arrived disheveled and was rude
hardship or would not be possible"
berg, legal affairs director of the
for a few days should get a break.
for the disabled worker.
TIM
1/2
MAy 13, 1997
SOCIETY
By ELIZABETH GLEICK
RENE WOZNY, 40, IS AN ATTORNEY FOR
MENTAL
the Maryland Department of Assess-
ments and Taxation in Baltimore.
She is fortunate enough to have
found work she enjoys, but every so
often she gets derailed by chronic
major depression, a mental illness
that can cause a loss of self-esteem, an in-
ability to concentrate and a negative out-
look on life. Wozny has been troubled by
ADJUSTMENT
the disease for as long as she can remem-
ber. Last year she learned of an experi-
mental program for depression run by the
National Institute of Mental Health, but in
order to participate, she needed to arrive
at work an hour or two late every day for a
month. She and her supervisor struck a
How far should employers go to
deal: she would make up the lost time at
the end of each day. "It's the first time I've
help someone with a psychiatric
had a boss who is understanding about this
kind of thing," Wozny says.
The path to such enlightenment,
illness stay on the job?
though, is never easy-and most employers
need some clear road markers along the
way. Although the Americans with Disa-
bilities Act of 1990 specifically prohibits
any employer with 15 or more workers
from discriminating against employees
with mental or physical impairments, many
managers have been quicker to install
wheelchair ramps than to offer the kind of
flexibility Wozny's boss did. That is why in
March the Equal Employment Opportuni-
ty Commission issued guidelines to help
employers navigate the fuzzy, sometimes
unquantifiable arena of mental illness in
the workplace. The guidelines, addressing
recent case law, explain how employers
should attempt to accommodate mental
disabilities that don't directly compromisea
worker's qualifications for the job.
Given that 1 in 10 Americans is likely to
suffer from a diagnosable mental illness
during the year, the stakes for employers
are potentially enormous. Although the
FOUR SCENARIOS
Examples used by the Equal Employment
Opportunity Commission in new guidelines
on psychiatric disabilities
1
ESTABLISHING
DISABILITY
"An employee asks for time off
MATTHEW q
because he is 'depressed and
stressed.' 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."
2/2
LONG- OR SHORT-TERM
2 "An by the
end CONDITIONS of a
Although he continued his daily
tainly give people new ideas about suing,
routine, he sometimes became
tute in Philadelphia, which specializes in
and there will always be the occasional sur-
agitated at work. He was most
mental-health disorders, the majority of
distressed for about a month during
prising decision. Two years ago, for in-
accommodations cost less than $500 per
and immediately after the breakup.
stance, a severely depressed attorney who
affected worker-significantly less than it
He sought counseling, and his mood
worked for the San Francisco utility Pacif-
costs to replace a worker.
improved within weeks. His
ic Gas & Electric asked for shorter work
Thanks in great part to new medica-
counselor gave him a diagnosis of
weeks and a transfer to a more under-
tions, "substantially more of these people
'adjustment disorder' and stated
standing supervisor. According to the em-
can get back into competitive employ-
that he was not expected to
ployee's lawyer, he filed suit when the
experience any long-term problems
ment-real jobs in integrated settings for
company refused, and talks broke down
associated with this event. This
regular wages-than we had expected,"
employee does not have a disability with
over the plaintiff's request for positive eval-
says Robert Drake, a psychiatrist at Dart-
for purposes of the Americans
uations should the company rehire him. A
mouth University, who has hired several
Disabilities Act."
court-appointed arbitrator ordered the
seriously disabled people to work in his re-
utility to pay $1.1 million to the plaintiff.
search laboratory. "The job seems to be a
(Federal law limits awards to $50,000 for
an employee in a company of 100 or fewer
guidelines do not have any legal force un-
and $300,000 for a company of 500 or
4
REASONABLE
der the law, refusing to follow them can be
more, as well as money for back pay and le-
risky. The courts often look to the EEOC'S
gal fees.) "It was a wacky decision," says
"A MACCOMMODATIONS.COM
analysis when ruling in discrimination law-
PG&E lawyer Kenneth Yang, yet he ac-
individuals working as cashiers to
suits. So far, nearly 13% of all EEOC com-
knowledges that the law has not caused the
drink beverages at check-out
plaints under the disabilities law have in-
stations. The retailer also limits
company any "undue hardship."
cashiers to two 15-min. breaks
volved mental illness, though some experts
"The hype around the guidelines re-
during an eight-hour shift, In
feel this number is leveling off. In a
minds me of the hype when the law was
addition to a meal break. An
TIME/CNN poll last week, 62% said they
passed," says Lia Shigemura, director of
individual with a psychiatric
believe employers should accommodate
Affirmative Action, Equal Employment
disability needs to drink beverages
mental impairments.
and Diversity at PG&E. "Companies
approximately once an hour In order
But what worries employers, especially
feared that busloads of disabled people
to combat dry mouth, a side-effect
small-business owners without human-
were going to beat down the walls seeking
of his psychiatric medication. This
resources departments or staff attorneys, is
employment. It was not the case. What
Individual requests reasonable
that one worker's run-of-the-mill bad atti-
accommodation. In this example,
happened was that existing employees
tude may be another's debilitating schizo-
the employer should consider
sought accommodations." And this a key
modifying Its policies."
phrenia. "This is fraught with undesirable
point: there is already a lot of mental dis-
pitfalls," says Don Livingston, a Washington
ability in the workplace. The ADA'S goal is
lawyer who is former general counsel at the
to remove the stigma of
structuring activity that is actually quite
EEOC. "It calls on employers to make
talking about it and
helpful." Drake's chief interviewer had
enigmatic distinc-
coping with it. "Ideally,
been hospitalized for manic depression
tions between per-
CONCENTRATION IMPAIRMENT
if you are an employer
more than 20 times before coming to work
sonality traits and
personality disor-
3 that he has is
and you try to use this
for him. Catherine Durette, who runs a
guidance for problem
ders. Mental-health
<<<<<<<<<<<<<<<<<<<<<<<<< He
cleaning business in Manchester, N.H.,
solving, you are going
hires people referred to her by a local
professionals often
tired
find this an impossi-
ble task, and now it's
attributes Although his ability limited to
this to his
to avoid litigation most
mental-health center-people whose ail-
of the time," says Gary
ments range from schizophrenia to obses-
depression. may be slightly
Phelan, the co-chair-
sive-compulsive disorder. "They are all on
being put before facto-
ry supervisors." Henry
<<<<<<<<<<<<<<<<<<<<<<<<<
because <<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<<<<<<<<<<
man of the disability-
<<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<<<<<<<<<<
meds," she says. "If I feel someone is hav-
rights committee of
ing an off day or seems out of character, I
Saveth, an attorney at
the National Em-
call the center. It may not be anything. You
Foster Higgins, which
<<<<<<<<<<<<<<<<<<<<<<<<< <<<<<<<<<<<<<<<<<<<<<<<<<
in the in the
ployment Lawyer's
and I have off days."
represents leading cor-
porations in employ-
have difficulty tired
Association.
In general, though, "it is true that em-
are or
Unlike
such
ployers would prefer not to deal with men-
ment disputes, is con-
capital-intensive al-
tal illness-just like they would prefer not to
cerned that traits such as
terations as in-
deal with child care," says Laura Mancuso,
chronic lateness or poor
stalling ramps or
whose firm, the Conflict Management In-
judgment may be linked
lowering drinking fountains, accommo-
stitute, helps mediate disabilities-law con-
to psychological impairment. Says Saveth:
dating the mentally ill in fact often requires
flicts in the workplace. Kay Redfield Jami-
"Employers are going to face the issue: How
little more than an attitude adjustment.
son, a professor of psychiatry at the Johns
much special treatment do they have to give
The Sears, Roebuck 1996 Work Force re-
Hopkins medical school, who wrote An Un-
to their poor performers?" This question, he
port showed that the average cost to the
quiet Mind about her own manic-depres-
says, "is going to lead to endless litigation."
company for such accommodation in 1993-
sion, notes, "One of the net effects of dis-
That particular anxiety, though, may
95 was zero. Employees with a learning
crimination is that people go underground
be overblown-and heightened by the
disability were permitted to work at a slow-
with these illnesses and do not get treated."
scare tactics of some attorneys advertising
er pace; those with mental illness were of-
That can end up costing their employers a
expensive disabilities-law training semi-
fered shorter shifts, lower-stress duties or
lot more.
-Reported by Ann Blackman/
nars for business owners. The wave of pub-
flexible work hours. According to studies
Washington, William Dowell/New York and
licity surrounding the guidelines may cer-
conducted by the Matrix Research Insti-
Margot Homblower/Les Angeles
TIME, MAY 19, 1997
63
USA
TODAY
Money
TUESDAY, MAY 13, 1997
E
MONEYLINE
A QUICK READ ON THE TOP MONEY NEWS OF THE DAY
WorkUSA.com
An e-mail/fax forum on workplace issues
Should workers with mental illness get the
same accommodation in the workplace as those
with physical disabilities? The law says yes. The
Equal Opportunity Employment Commission re-
cently issued guidelines for employers. But critics
say employers are saddled with a complex law
and are often stuck with disruptive employees.
What do you think? How should mental illness be
handled in the workplace? Send us your com-
ments. By e-mail: [email protected] By
fax: 1-800-242-4595. Survey results and selected
responses will appear in WorkUSA.com, Mon-
ey's workplace column. Please include your
name and a daytime phone number.
THE WASHINGTON POST
R
MONDAY. MAY 12, 1997
Tipper Gore
are relatively inexpensive and easy to
provide. The ADA even provides em-
ployers a defense-"undue hard-
Razing
ship"-when making an accommoda-
tion proves too difficult or too
expensive.
Workplace
Let's be clear. As I understand the
rules, the ADA requires that an em-
ployee who wants to be accommodat-
ed because of his or her psychiatric
Barriers
disability must show that he or she
falls within the legal definition of the
term "disability." That employee must
In 1990 Congress clearly sought to
demonstrate to the employer-with
eradicate employment discrimination
documentation-that he or she has a
against people with mental, as well as
disability that substantially limits one
physical disabilities, when it passed
or more major life activities.
the Americans with Disabilities Act
Essentially, the employee must
(ADA). Although thousands of people
have a serious, definable mental ill-
with psychiatric disabilities are work-
ness. Of course, even then, the em-
ing successfully in a variety of jobs in
ployee is not entitled to be excused
this country, many more are denied
from relevant standards of conduct or
employment opportunities because of
from job performance standards. This
myths, fears and stereotypes. These
is simply an issue of equality for
barriers of attitude often exclude
people with mental and physical disa
bilities.
qualified candidates from being con-
sidered for a job, and they keep peo-
This guidance also reminds employ-
ple with mental disabilities from lead-
ers that the ADA applies to all people
ing productive lives.
with disabilities, not just those with
Recently, the Equal Employment
physical disabilities. Eliminating stig
Opportunity Commission (EEOC)
ma and reducing stereotypes takes à
published policy guidance to explain
long time.
to private employers how they can
Every time a person with a disabilis
comply with the ADA's requirements.
ty is able to obtain and keep a good
Like the ADA itself, the EEOC's poli-
job, we're making progress. Encourse
cy guidance recognizes both the
aging those who can work to work,
rights of people with psychiatric disa-
helps all of us because our nation
can't afford to waste the talents of
bilities to be free from discrimination
anyone. Employers will be better
in the workplace and the legitimate
concerns of businesses that are trying
served by familiarizing themselves
with the guidance and treating with'
to comply with the law.
dignity and respect employees with
Unfortunately, the reaction of
psychiatric disabilities who request
some in the business community to
reasonable accommodations. Not only
these guidelines makes it clear that
is it degrading to the principles of
the battle against the stigma associat-
America to reinforce outdated myths,
ed with mental illness has not yet
fears and stereotypes, it against our
been won. Given that one in four
national interest to undervalue any
American families is affected byng
individual.
mental illness, this is disturbing.
Contrary to reports, EEOC's guide
The writer, the vice president's wife,
does not require that employers give
is an adviser on mental health policy
special treatment to people with psy-
to the president.
chiatric disabilities. Rather, the
EEOC and the ADA require employ-
ers to do for employees with psychiat-
ric disabilities what they must do for
employees with physical disabilities-
make reasonable accommodations
that will enable such employees to do
their jobs.
Many employees with psychiatric
disabilities are now working success-
fully without any accommodations.
Others require accommodations that
THE NEW YORK TIMES EDITORIALS/LETTERS WEDNESDAY, MAY 7, 1997
Mentally Ill Needn't Make Workplace Inefficient
To the Editor:
recognize signals that an acute epi-
workplace. And for the person suffer-
Guidelines by the Equal Employ-
sode is imminent.
ing from a psychiatric condition, sat-
ment Opportunity Commission for
While studies have claimed that
isfying employment can itself con-
workplace accommodation to psy-
some psychiatric patients can
tribute to the healing process, pro-
chiatrically disabled employees are
emerge from an illness without inter-
viding the additional benefit of cut-
long overdue (front page, April 30).
vention, a person seeking employ-
ting the costs of treating mental ill-
However, implementation requires
ment cannot take the chance that he
ness.
INGEBORG OPPENHEIMER
that the employee assume some re-
or she belongs to that group. The
Yonkers, April 30, 1997
sponsibility. In acute phases of ill-
need to limit the duration of an epi-
The writer is a clinical social worker.
ness the ability to think, learn, rea-
sode requires willingness to accept
son, judge and otherwise function
treatment and to come to terms with
mertally can be impaired. In order
the possibility that it may have to
Open-Ended Program
to sustain employment, people with
continue for many years.
To the Editor:
these disabilities must come to un-
Mental illness, if managed, should
Your April 30 front-page article
derstand their condition and learn to
not compromise productivity in the
"Employers Told to Accommodate
the Mentally III" illustrates the out-
rageous results of the Americans
With Disabilities Act of 1990. Thanks
to that vaguely worded, open-ended
Excluded Disabilities
(but nice-sounding) entitlement pro-
To the Editor:
gram, virtually any negative, anti-
"Breaks for Mental Illness: Just
social or unproductive behavior that
What the Government Ordered"
an employee engages in is now cate-
(Week in Review, May 4) suggests
gorized by the Government as a "dis-
that the "sex addict," "sadist,"
ability," and therefore a protected
activity.
STEVE FEINBERG
"voyeur" and "peeping Tom" em-
ployee might be particularly prob-
Brooklyn, May 1, 1997
lematic for an unsuspecting employ-
er to accommodate. In fact, the
Corporate Cooperation
I
Americans With Disabilities Act ex-
To the Editor:
plicitly excludes such disabilities
Despite the advances made in edu-
from coverage. MARY GILIBERTI
cating the public and policy makers
Staff Attorney, Bazelon Center
about mental illness, some of the
for Mental Health Law
responses by business interests not-
Washington, May 5, 1997
ed in your article illustrate that there
is work to do (front page, April 30).
Depression's Realities
Instead of decrying guidelines that
To the Editor:
ban discrimination against people
Thank you, Pete Harnisch and
with mental health needs, enlight-
Frank Rich, for bringing out in the
ened corporate leaders are moving
open once again the realities of
in a different direction. Companies
someone suffering from clinical de-
like Digital Equipment, BellSouth
pression ("Harnisch's Perfect
and Conoco are reaching out to work-
Pitch," column, May 1). I felt as if I
ers who have depression and other
was "coming out of the closet" when
mental disorders. These companies
I began to admit to friends and co-
then link their employees with treat-
workers that I was clinically de-
ment through health insurance
pressed.
plans.
From the stigma in the workplace
A 1990 Massachusetts Institute of
to the odd looks one receives from
Technology study showed that the
friends who do not understand, this
cost of depression in lost productivi-
experience is never easy. Medical
ty and absenteeism was $23.8 billion
treatment, a supportive family and a
annually. Resisting fair considera-
fair employer have helped me to
tion for people with mental disorders
begin to live a life I never thought
in the workplace actually works
possible. Now, if only medical insur-
against the interests of American
ance companies could see the bigger
business.
MICHAEL M. FAENZA
picture.
PAMELA A. BEELITZ
President and Chief Executive
Cranford, N.J., May 1, 1997
National Mental Health Association
Alexandria, Va., April 2, 1997
th.
in
PHILADELPHIA DAILY NEWS
5-6-97
Safeguards for mentally ill issued
by Rose DeWolf
Daily News Staff Writer
Attention, workers: Don't think
you can get away with showing
up late for work or goofing off
"Mental illness has always been
just by saying "my mental state
ness, as required by the Ameri-
tive employee - and if the re-
covered by the ADA." he said.
made me do it"
cans with Disabilities Act.
quest is reasonable to do some-
"A person who, because of ill-
The U.S. Equal Employment Op-
But it doesn't allow just any
thing about it. The guidelines on
ness, is rude and argumentative
portunity Commission yesterday
kind of conduct. The federal law
mental illness and the workplace
won't succeed in sales, but might
issued guidelines to employers on
requires employers to ask employ-
say employers may have to allow
have no problem at all sitting in
making reasonable accommode-
ees what they need to enable
some time off from work, shift
an office adding up numbers all
tions to workers with mental fll-
them to continue to be a produc-
schedules, forgive lateness, TO
day. he said.
"I was recently told a story
consider assignments - even al-
about a company which was hir-
ter physical surroundings - if
ing a plant manager." Block
such remedies can reasonably en-
added. "One of the candidates had
able a worker to perform on the
suffered from manic depression
job.
and was immediately excluded
from consideration. That would
Moreover, employers are not al-
be Ulegal - and has been illegal
lowed to ask at a job interview if a
since the ADA was passed."
job candidate has a history of
Attorney Stephen Gold, a veter-
mental illness. And they may not
an plaintiff's lawyer in disability
discrimination lawsuits. welcom-
refuse to hire an applicant on
ed the new guidelines.
grounds of mental illness - un-
Gold says hospitalization for
less the person clearly would be
mental illness carries a stigma
unable to do Job functions. That is
even when such treatment cn-
no different from what the law
ables a person to recover quickly.
requires employers to do to ac-
"But if you have leg problem or
commodate those with physical
are hit on the head and need a
disabilities, experts say.
week or two in the hospital, no
"The key word is reasonable,"
one thinks twice," he said.
says Joseph Rogers. deputy execu-
tive director of the Mental Health
Association of Southeastern Penn-
sylvania. Rogers, who has been
hospitalized for manic depres-
sion, served on task forces that
helped to draft the ADA and the
recently issued guidelines.
If a record of Isteness disrupts
an assembly line because other
workers cannot begin until every-
one is present, an employer is not
obliged to accept it, Rogers said.
But if the employee could start a
few minutes later and still get the
job done. the employer would
have to consider adjusting the
time, he said.
Perry Block, president of the
Philadelphia regional chapter of
the Society for Human Resources
Management, said the EEOC is not
requiring anything new.
1
05/06/97
14:16
202 456 6298
MRS GORE'S 0FFC
И 002
MAY-06-97 TUE 08:20
RE CARTHAGE
FAX NO. 6157367898
P.04
Nashville Jennesseaw
5-6-97
page 12A. Ed.
Work and mental illness
T
HE federal government took an im-
cal instructions. But in broader terms,
portant step forward last week by
they will serve as a reminder about the
outlining rules for employers regarding
unfair stigmas that often accompany
workers with mental Illness.
mental illness.
It should prove to be a significant vic-
If a worker suffers from a physical
tory for those employees.
impairment, that disability can be easily
The rules are new, but the law that
seen and understood. But when mental
backs them up is not The Americans
illness interferes with a worker's ability
with Disabilities Act became law in 1990.
to do a job, It may not be so easy for
Previously, It had generally been applied
employers and fellow employees to rec-
only to workers with physical disabilities.
ognize.
But the Equal Employment Opportunity
Recent figures show that in a given
Commission last week sent a clear mes-
year, 13% of the complaints filed with
sage that the law also applies to workers
the EEOC are related to mental illness,
with mental disabilities.
second only to back problems. Much of
The EEOC specified that workers with
the public may be surprised by those
maladies such as depression, obsessive-
figures, which is why the stand about
compulsive disorder, schizophrenia and
mental illness is so vital.
other conditions must be granted "rea-
The Americans with Disabilities Act
sonable accommodation" at the work-
has proved to be breakthrough legisla-
place in order to do their jobs. It also
tion. Former President George Bush, on
stipulates that employers may have to
whose watch the law was enacted, has.
allow workers time off or adjust work
rightfully expressed pride and satisfac-
schedules.
tion with its impact. Now, it is time to let
Fortunately. many employers already
this relatively new law have an even
understand the nature of mental illness
more defined role. Mental illness must
and treat workers accordingly. But some
be addressed with fairness and under-
do not, which is why the government's
standing by all employers. The EEOC
protective step N necessary.
guidelines meet that most important
The guidelines are intended as practi-
need.
Times-Union, Rochester, N.Y., Monday. May 5, 1997
EDITORIALS
TIMES-UNION
Founded 1918
STEVEN R BRANDT President if Publisher
THOMAS E CALLINAN Editor U Far President/Neus
CAROLYN K WASHBURN Managing EAST
CHARLES G. WILSON Eliter Eduid Page
EVERTON WEEKS
1 BRUCE KLINK P.Forms
STANLEYN. YOSHIDA
RICHARD GREENE F P./Harm Returns
THOMAS FLYNN
JEFFREY A KAPUSCINSKI Description
JAMES c PAUL Controlier
MICHAEL) MONSCOUR V.P./Production
A GANNETT NEWSPAPER
Fairness for the mentally ill
The 1990 Americans With Disabilities
But the guidelines give examples of
Act requires that employers make a
the kind of accommodations considered
"reasonable accommodation" for
reasonable, such as scheduling breaks so
employees with mental as well as
that workers with mental illnesses can
physical disabilities.
take their prescriptions.
But the problems that people with
As EEOC Associate Legal Counsel
mental illness face are not always readily
Peggy R. Mastroianni put it, "We try to
apparent. And those who suffer from such
give some common sense answers to
illnesses are often reluctant to discuss the
frequently asked questions."
problems with their supervisors.
A LITTLE FLEXIBILITY can go a
The Equal Employment Opportunity
long way in helping people with even
Comunission has now issued guidelines
severe mental illness stay on the job.
that not only spell out what's "reasonable"
Sensibly, the guidelines also set forth
but should also encourage a more open
procedures for how employers should
discussion between employees and
respond to claims of mental disability.
employers.
What's more, the guidelines should
THE FACT that during the past four
make employees more comfortable
years, 9,216 complaints filed with the
seeking accommodations for their mental
EEOC - almost 13 percent of the total
illness. The emphasis should be on
- alleged discrimination related to
working out acceptable arrangements -
psychological problems shows that greater
based on open discussion, instead of
guidance is needed for implementing the
relying on preconceptions or fears.
law.
Under these guidelines, employees
Employers are not expected to tolerate
with mental illness are more likely to get
disruptive behavior or lower performance
the fair shake in the workplace that the
standards.
1990 legislation promised.
,PHILADELPHIA DAILY NEWS
APRIL 30, 1997
In Our Opinion
On the job, the issue is fairness
New guidelines on psychiatric disabil-
A man in a bad mood over breaking up
some people with serious mental illness.
ities released recently by the U.S. Equal
with his girlfriend is not disabled and
In the past, they were blocked from
Employment Opportunity Commission
doesn't have a license to miss project
proving themselves because potential
confirm just how much has changed
deadlines.
employers rejected them simply because
over the last decade.
Violations of conduct codes like
of their illnesses. Some lost jobs when
The Americans with Disabilities Act
stealing or destroying property - may
their psychiatric problems caused them
requires employers to make "reasonable
be punished, even if the employee has a
to miss work or be late and they were
adjustments" not just for employees
psychiatric disability that may have con-
unable to reclaim them when they got
with physical disabilities, but also for
tributed to the violation.
better.
employees whose psychiatric disorders
Someone who claims a psychiatric dis-
Now many more have the opportunity
"substantially limit a major life activ-
ability may be required to provide docu-
to-show what they can do, to work hard
ity."
mentation from a doctor.
and not be dependent on others
So a qualified computer programmer
At the same time, those with psychiat-
which is all most ever wanted.
with an anxiety disorder, like one who
ric disabilities may be entitled to
uses a wheelchair, can't be denied em-
changes in schedules or exceptions
ployment just because of the disability
from company policies to help them do
- and may even have a right to reason-
their jobs adequately- if they don't
able adjustments in the workplace.
cause undue hardship to the company.
But SO much stigma has been attached
For example, a company with a policy
to people with mental illness that even
against cashiers drinking beverages
employers committed to complying with
while working might be asked to allow
the 1990 law have questions. Many.
an exception for an employee with bipo-
worry they'll havesto suffer violent or
lar disorder, since the medication he
rude employees or keep people who
takes has a side effect of dry mouth.
can't do the job, for fear of being sued.
Another suggested that an employee
Psychiatric problems represent 12.7
who was having difficulty maintaining
percent of the charges of discrimination
focus on projects could be helped by es-
under the Americans with Disabilities
tablishing more regular meetings with a
Act in the last four years.
supervisor.
Among the many misconceptions
If it works the way it is supposed to,
about psychiatric disorders is that they
the employee with the disability gets to
don't really exist- but are ways to ex-
keep the job and perform it better; the
cuse character flaws or get special-privi-
employer keeps a qualified worker.
leges.
without having to lower standards.
So even people with enlightened atti-
Attitudes towards mental illness have
tudes worry about the potential for
been transformed in the last decade.
clever employees avoiding responsibil-
The Americans with Disabilities Act,
ity for poor job performance through
whatever its flaws, partly deserves cred-
bogus claims of mental illness.
it for that.
The real world described in the EEOC
The difference these guidelinés repre-
guidelines should reduce those fears.
sent is nothing short of profound for
MAy 7, 1997
Clips
Elena Kagan
05/15/97 10:10:19 AM
Record Type:
Record
To:
Diana Fortuna/OPD/EOP
CC:
Bruce N. Reed/OPD/EOP
Subject: eeoc guidelines
Podesta says the President has expressed some skepticism about the new EEOC guidelines on
accommodating workers with mental/psychological disabilities. Podesta says this is somewhat sensitive
because Mrs. Gore has come out publicly in favor of the guidelines. Podesta suggested that we write a
memo to him (not directly to the President) laying out the situation -- what the guidelines do, what the
process was for issuing them, what is likely to happen now, and whatever else you think appropriate.
Thanks much. By the way, in case you haven't dealt with the EEOC before, I've always found ellen
vargas, the general counsel there, to be fairly helpful.
Wpoot
WST
NYTimes
EEOC -gridelence -proces
OPERTORITY EMPLOYMENT
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
May 19, 1997
Dianna Fortuna
Assistant Director for Welfare
Old Executive Office Building
Room 212 Left
17th & G Streets, NW
The White House
Washington, D.C. 20502
Dear Dianna:
I've enclosed a package of information on the Commission's Guidance on the ADA and
Psychiatric Disabilities. Please feel very free to call on me if I can be of any further assistance.
Sincerely
Even
Ellen J. Vargyas
Legal Counsel
Enclosures
UNFAVORABLE
THE WALL STREET JOURNAL TUESDAY, MAY 13, 1997
A23
Think Your Co-Workers Are Crazy? They Are.
"No other technique for the conduct of life
agency's definition of "mental disability."
Wait for him to speak up-never mind that
under the aegis of the disabilities law,
attaches the individual so firmly to reality
Freud broke neuroses into two cate-
a disturbed person is usually the last to
Washington seems bent on undermining
as laying emphasis on work; for his work at
gories, transference-phobias obsessions,
recognize his problem.
the therapeutic benefits of work. Once
least gives him a secure place in (I portion of
etc.-and narcissism, what most people
Don't level with co-workers. Fob them
locked into a job, employees can give free
reality, in the human community.
would see as the tendency to be a jerk. In
off with lawyer-drafted phrases about
romp to their worst traits, and expect only
SIGMUND FREUD
the latter category we find our friends who
"business necessity" and "compliance with
indulgence. A company would have to be
"CIVILIZATION AND ITS DISCONTENTS"
are grandiose, insensitive, ambitious and
federal laws." This sounds like just what
crazy to give anyone a chance under these
self-pitying.
the attorney ordered, but a troubled em-
circumstances, and lawyers are indeed
Undoubtedly people cause a lot of suf-
He considered such folks virtually un-
ployee might be better off having her co-
taking over the personnel offices.
fering to themselves and others with their
reachable through psychoanalysis, and
workers' understanding and support of the
At the same time, the law stacks the in-
personalities, but the world of work is any-
hoped science might someday help them
drooling, sobbing wreck she has become.
centives in favor of companies warehous-
thing but unwelcoming to troubled souls.
with drugs or surgery. In the meantime, he
In fact, companies need their employ-
ing lost souls, and in favor of individuals
There is a place for manic depressives.
noticed that these personalities are often
ees, and are naturally inclined to succor
allowing themselves to be warehoused
We call these people "management," and
the ones most responsible for driving the
them. A few years back the magazine Per-
when they might be happier and more suc-
harness their search for equilibrium to the
economy forward.
cessful elsewhere.
general good with stock options. Politics
They correspond roughly to the "per-
It's bad enough that people crank them-
affords a profession for the homely narcis-
sonality disorders" listed in the diagnostic
manual of the American Psychiatric Asso-
The lawtives in the
selves into these vises out of their own dis-
favor
ordered expectations. We ran a story Fri-
Business World
ciation. And a lot of corporate counsels and
of employees allowing
day about a woman who rose quickly
trade associations were wondering if, for
through the ranks of Duquesne Light,
the purposes of the Americans With Dis-
themselves to be ware-
By Holman W. Jenkins Jr.
landed a top job, but quit and killed herself
abilities Act, such conditions were covered.
And there it is: On page 10 of the EEOC
housed when they
after a series of difficulties. Psychoanalyst
Manfred Kets de Vries has written about
guidelines, the "ability to interact with
might be happier else-
executives who, after decades of dutiful
sist. Agoraphobes telecommute. And while
others" is deemed "a major life activity,"
and anyone may be eligible who displays
where.
corporate ascent, disintegrate upon reach-
normally you have to have a brain before
ing the top job. Luby's new CEO killed him-
you can have a personality, let alone a per-
"consistently high levels of hostility, social
self after one bad quarter.
sonality disorder, there always seems to
withdrawal or failure to communicate
sonnel Journal posed the hypothetical case
The market sorts imperfectly, but the
be work for commentators.
when necessary."
of an emotionally unstable employee with
more diverse and flexible the market, the
On first pass, the new guidelines from
Half of Corporate America now quali-
a known gun mania who made his co-work-
better the chances that people will end up
the Equal Employment Opportunity Com-
fies as mentally disabled, and most of Wall
ers nervous. The almost knee-jerk reaction
finding their places. Jack Welch assures
mission on applying the Americans With
Street.
of its readership was: You don't fire the
us that today's stock-optioned CEO is on
Disabilities Act to mental illness wouldn't
One looks in vain for the problem this
guy; you try to help him.
the "lunatic fringe" compared to his pre-
seem to undermine the therapeutic value
was meant to solve. Far from extruding
But a shift in tone has been noticeable
decessor of yesteryear. (He means in a
of work.
the mentally ill, companies are already
since then. Whereas the literature once fo-
good way.) CEOhood may not be every-
Apparently the commission believes
spending billions to treat the quirks and
cused on how to motivate the troubled em-
one's cup of Prozac, but everyone can ap-
companies go to the trouble and expense of
discontents of their employees. And com-
ployee, the subject has become how to
preciate that the neurotic activities of our
hiring workers just to fire them. It sug-
panies have always bent over backward
avoid hiring him-or failing that, how to
business elite throw off a lot of social
gests they try instead to "accommodate"
for their top performers, SO what has the
get rid of him without running afoul of
wealth. In turn, somewhere somebody's
the idiosyncrasies of their workers. Duh.
government done for the rest of us?
some judge.
Alzheimered grandmother can be indulged
Since cavepersons formed the first consor-
Whatever problems the emotionally
This is a shame, because work works
to soak up a lot of GDP rather than being
tium to hunt the mammoth, organizational
troubled were already having at work,
for people. It brings them up against the
left out for the wolves.
man has understood you have to work with
they can only be made worse by introduc-
needs of others. It acquaints them with the
Trying to impose rules on this may be
the material at hand.
ing more paranoia and caginess into the
workings of the reality principle. It
insane. The essence of a troubled person-
But the agency would still permit non-
litigious workplace. Yet the guidelines con-
teaches them about their own limitations
ality is maladaptive rigidity: doing the
performers to be fired, so aside from ex-
sist largely of paranoiac dos and don'ts for
and about the importance of domesticating
same thing over and over and expecting a
panding the residuum of lawsuits, what's
employers:
their personalities to make themselves tol-
different result. So when will Washington
new here?
Don't ask a visibly disturbed and failing
erable to others.
get over believing it can regulate away all
The world was really hanging on the
employee if he needs accommodation.
Having dragged the mentally troubled
the friction of life?
TITLE:
Risky Business // Accommodating Mental Illness On the Job
COLUMN: Joan Beck
BYLINE: Joan Beck
CREDIT: Chicago Tribune.
DATE:
05/11/97
SOURCE:
Tulsa World; TUL
(Copyright 1997)
If an employee claims he has a phobia about rush-hour traffic,
must he be given shorter work hours? If he says his poor performance
review aggravated his depression, must his boss toss it out? If he
is often late for work because he is hung over, must his boss
accommodate his disability due to alcohol dependence?
You're trying to run a small business. One of your employees has
been coming in late day after day, holding up other workers who are
griping to you. When you confront the tardy employee he tells you
he is taking medication for depression that makes him groggy in the
mornings and it's too hard for him to make it to work on time.
Suddenly you're standing in the middle of a new regulatory
minefield with only a sketchy map.
You are now required to consider your employee as disabled and
entitled to reasonable accommodations on the job, according to new
guidelines announced last week by the Equal Employment Opportunity
Commission. You may have to give him more time off, put up with his
coming in late, change his duties or cut him other kinds of slack.
The intent of the new regulations is to bring mental illness
into parity with physical handicaps under the Americans with
Disabilities Act of 1990. Who can fault that?
It's another victory for those who pushed a law through Congress
last year requiring that, starting Jan. 1, health insurers must use
the same annual and lifetime reimbursement caps for mental
illnesses as for physical illnesses. That's fair -- and overdue.
But how far must employers now go to accommodate mental illness
on the job? The answer isn't clear, especially when it's sometimes
difficult even to diagnose mental illness or to distinguish it from
other emotional distress.
An employer can install a ramp and enlarge a bathroom for a
worker in a wheelchair or add amplification equipment to a phone
for someone who is hearing-impaired. But what does he do when an
employee says he must have a private, isolated office because he
has attention deficit disorder and is easily distracted or
complains that his supervisor increases his level of stress?
How can an employer, or a manager, distinguish between laziness
and mental disability in every case? Or know whether he can tell a
worker with a bad attitude to shape up or must instead make
reasonable accommodations for his behavior because it is caused by
mental illness?
The EEOC's new guidelines are well-intended, presumably. Mental
illness does need to be treated with the same level of help and
understanding as physical illness. Accommodations in the workplace
can keep many qualified people in their jobs, despite mental
disabilities. The guidelines say employers don't have to lower
their job performance standards.
But the EEOC has laid a new burden on employers and opened the
way for lawsuits from workers who can claim that the reason they
were fired, or not promoted, was because they were mentally
disabled, not because they were rude, non-productive, hostile,
couldn't get along with others or goofed off.
Employers can't ask job applicants if they have ever been
mentally ill, says the EEOC. If a company orders a prospective
employee to get a medical exam that includes a psychiatric
evaluation, it must do the same for all new hires in the same job
category and it can't turn down the applicant unless it can prove
that the reason is job-related.
There are some mitigating words in the EEOC's guidelines.
"Reasonable accommodations," for example, must be made unless they
impose "undue hardship" on an employer or fellow workers. Among the
accommodations the EEOC suggests are a sound-proof office, a later
start on the job, a change in supervisors, a job coach to help with
performance problems, a flexible work schedule, leaves of absence.
But many questions are still unanswered. If smoking, for
example, is classified as nicotine dependence and a psychiatric
disorder, must an employer provide a worker a time and place to
smoke on demand -- because he is mentally disabled?
It's even trickier because, as the EEOC notes, a mentally ill
person may not be able to tell his boss what kind of special
accommodations he needs, although that doesn't let the employer off
the hook.
An employer can ask for a written diagnosis from the employee's
doctor, but must be careful not to violate privacy laws. He must
keep all psychiatric information confidential. And he can't tell a
worker's colleagues that he is getting special treatment because he
is mentally disabled, although he can say the company is "acting
for legitimate business reasons or in compliance with federal law."
The EEOC is right to try to expand the protections and help of
the Americans with Disabilities Act to give better coverage to
those with mental illness. They have always been ignored,
stigmatized, discriminated against and shortchanged in research,
treatment, health benefits and job opportunities.
But the new rules, however good their intentions, are going to
be a major pain for many employers. The definitions of mental
illness are still too fuzzy and the lines sometimes too indistinct
between what is genuine disability and what is bad attitude or lack
of effort on the job or emotional reactions to ordinary stresses
and disappointments in life.
Employers are going to find it more difficult to screen out
problem workers before they are hired and harder to deal with them
once they are on the payroll. More lawsuits are inevitable. Court
decisions may or may not match EEOC guidelines. And more time and
effort will have to go into complying with the new rules. It could
be a major mess.
When
Work
THE
NEW
YORK
TIMES
OP-ED
SATURDAY, MAY 10, 1997
One of my former patients was a
Is
28-year-old woman diagnosed with
"borderline personality disorder"
need. No competent clinician toler-
that manifested itself in a vicious
ates a patient's ritual lateness or
temper. She threw things and was
verbal abuse. Ideally, the patients
The Cure
hostile to people who, she told me,
will internalize the psychiatrist's
"don't understand my needs." She
"limits," as my patient did. And in
was clearly too fragile for a normal
the end, the patient is usually grate-
job, but she entered a program spon-
ful that the therapist held the line.
sored by the Easter Seal Society that
How else is one to change unless
By Sally L. Satel
gave her a job coach, and she worked
compelled to face the consequences
in a factory with other similarly su-
of one's actions?
pervised women.
The new guidelines might also lead
WASHINGTON
My patient's goal was to get a
fter the Equal Employment
"real" job, and this became the main
Opportunity Com-
goal of our therapy. We concentrated
incompetent workers to think they
on helping her manage her temper
are good at their jobs. Not even ther-
mission recently an-
nounced that em-
and deal with other social situations,
apists who see self-esteem as the key
ployers had to make
and she gradually improved. The day
to improvement could applaud that.
special accommoda-
she got a regular job at aircraft
Missing this clinical point, mental
assembly factory was one of the
health advocates have been quick to
tions for mentally ill workers; the
proudest of her life and marked a
defend the new Federal guidelines,
loudest protests, understandably,
breakthrough in her treatment.
saying that compliance will be inex-
came from business. The ruling
pensive - no new ramps to build, no
could mean that mentally disabled
Her therapy was successful only
because she had worked hard to de-
equipment to buy. But the cost could
workers who feel "stressed" can de-
mand time off. Those who are irrita-
serve a real job. It would have been
be enormous. We can expect waves
disastrous if, when she was still very
ble, erratic or depressed can expect
of backlash discrimination as em-
demanding and unruly, she had been
bosses and co-workers to tolerate
ployers become skittish about hiring
able to work in a regular office. She'd
their behavior.
a class of people they'll never be able
have learned nothing about self-con-
to fire. Co-workers' resentment will
trol, and our therapy would have
build as the stereotypical behaviors
been undermined.
of the mentally ill go unchecked.
Job protection
Sending dysfunctional people the
The new guidelines are a cruel
message that the world - or in this
ploy. By underestimating the ability
case the workplace - revolves
may hurt the
of people to improve themselves, the
around them is the last thing they
Government is giving them every
mentally ill.
reason not to.
Sally L. Satel is a psychiatrist and a
lecturer at Yale's School of Medicine.
But the main victims in exempting
mentally ill workers from accepted
behavioral standards may be those
workers themselves.
Mental health professionals have al-
ways regarded work as ideal therapy.
It rewards discipline, responsibility
and interpersonal skills. But the new
Federal guidelines extend an invita-
tion to people with personality dis-
orders - those who are manipulative,
emotionally needy and in poor control
of anger and impulses - to engage
their employers in power plays and
then hide behind their disabilities.
My patients want to fit into society,
to act and feel "normal," to be free of
destructive patterns. This is the ba-
sis of their therapy. When they can't
(or won't) conform to social norms,
bending the rules of the workplace or
the courtroom or the classroom
doesn't solve their problems; it's
likely to make them worse. With its
ruling, the E.E.O.C. is committing
the occupational equivalent of mal-
practice.
FRIDAY, MAY 9, 1997/DETROIT FREE PRESS
MENTAL ILLNESS
New guidelines on employee disabilities
create confusion in the workplace
If an employee claims he has a phobia
have a private, isolated office because she has
about rush-hour traffic, must he be given
attention deficit disorder and is easily dis-
shorter work hours? If she says her poor per-
tracted, or complains that her supervisor in-
formance review aggravated her depression,
creases her level of stress?
must her boss toss it out? If he is often late for
How can an employer, or a manager, dis-
work because he is hung over, must his boss
tinguish between laziness and mental disabil-
accommodate his dis-
ity in every case? Or know whether she can
JOAN
ability due to alcohol de-
tell a worker with a bad attitude to shape up or
MARGARET SCOTT/Special to the Free Press
pendence?
must instead make reasonable accommoda-
BECK
You're trying to run
tions for his behavior because it is caused by
coach to help with performance problems, a
a small business. One of
mental illness?
flexible work schedule and leaves of absence.
your employees has
The EEOC's new guidelines are well-in-
But many questions are still unanswered. If
been coming in late day
tended. Mental illness does need to be treated
smoking, for example, is classified as nicotine
after day, holding up
with the same level of help and understanding
dependence and a psychiatric disorder, must
other workers who are
as physical illness. Accommodations in the
an employer provide a worker a time and place
griping to you. When
workplace can keep many qualified people in
to smoke on demand - because she is men-
you confront the tardy
their jobs, despite mental disabilities. The
tally disabled?
employee, he tells you
guidelines say employers don't have to lower
It's even trickier because, as the EEOC
he is taking medication
their job performance standards.
notes, a mentally ill person may not be able to
for depression that
tell his boss what kind of special accommoda-
makes him groggy in
tions he needs, although that doesn't let the
the mornings, and it's
The intent of the new
employer off the hook.
too hard for him to
An employer can ask for a written diagno-
make it to work on time.
regulations is to bring
sis from the employee's doctor but must be
Suddenly you're standing in the middle of
careful not to violate privacy laws. The boss
a new regulatory minefield with only a sketchy
mental illness into parity
must keep all psychiatric information con-
map.
with physical handicaps
fidential. And he can't tell a worker's col-
You are now required to consider your em-
leagues that she is getting special treatment
ployee as disabled and entitled to reasonable
under the Americans with
because she is mentally disabled, although
accommodations on the job, according to new
he can say the company is "acting for legiti-
guidelines announced last week by the U.S.
Disabilities Act.
mate business reasons or in compliance with
Equal Employment Opportunity Commission.
federal law."
You may have to give him more time off, put up
The EEOC is right to try to expand the pro-
with his coming in late, change his duties or
But the EEOC has laid a new burden on
tections and help of the Americans with Dis-
cut him other kinds of slack.
employers and opened the way for lawsuits
abilities Act to give better coverage to those
The intent of the new regulations is to bring
from workers who can claim that the reason
with mental illness. They have always been ig-
mental illness into parity with physical handi-
they were fired or not promoted was that they
nored, stigmatized, discriminated against and
caps under the Americans with Disabilities Act
were mentally disabled, not that they were
shortchanged in research, treatment, health
of 1990. Who can fault that?
rude, nonproductive or hostile, couldn't get
benefits and job opportunities.
It's another victory for those who pushed a
along with others or goofed off.
But the new rules are going to be a major
law through Congress last year requiring
Employers can't ask job applicants if they
pain for many employers, however good their
health insurers to use the same annual and life-
have ever been mentally ill, says the EEOC. If
intentions. The definitions of mental illness are
time reimbursement caps for mental illnesses
a company orders a prospective employee to
still too fuzzy and the lines sometimes too in-
that they use for physical illnesses. That's fair
get a medical exam that includes a psychiatric
distinct between what is genuine disability and
- and overdue.
evaluation, it must do the same for all new
what is bad attitude or lack of effort on the job
But how far must employers now go to ac-
hires in the same job category, and it can't turn
or emotional reactions to ordinary stresses and
commodate mental illness on the job? The an-
down the applicant unless it can prove that the
disappointments in life.
swer isn't clear, especially when it's sometimes
reason is job-related.
Employers are going to find it more diffi-
difficult even to diagnose mental illness or to
There are some mitigating words in the
cult to screen out problem workers before they
distinguish it from other emotional distress.
EEOC's guidelines. "Reasonable accommoda-
are hired, and harder to deal with them once
An employer can install a ramp and enlarge
tions," for example, must be made unless they
they are on the payroll. More lawsuits are in-
a bathroom for a worker in a wheelchair or add
impose "undue hardship" on an employer or
evitable. Court decisions may or may not
amplification equipment to a phone for some-
fellow workers. Among the accommodations
match EEOC guidelines. And more time and
one who is hearing-impaired. But what does
the EEOC suggests are a soundproof office, a
effort will have to go into complying with the
the boss do when an employee says she must
later start time, a change in supervisors, a job
new rules. It could be a major mess.
SIR, THESE- GENTLEMEN FROM THE
J.S. EQUAL EMPLOYMENT EXPLAIN OPPORTUNITY NEW RULES COMMISSION
ARE HERE To IN THE ON
MENTAL ILLNESS WORKPLACE.
LARRY
WRIGHT
G1997 THE DETROIT New:
783
NO. YOU MAY NOT
ASK A JOB APPLICANT
ABOUT A HISTORY OF
MENTAL DISABILITIES
THAT'S DISCRIMINATION.
367
SUPERVISOR
EEOC
alle
BROCKINS 1/97 FICHMOND
TIMES DISPUTER
TITLE:
Going too far with ADA and phony disabilities
COLUMN: Joseph Perkins
BYLINE:
Joseph Perkins
CREDIT:
THE SAN DIEGO UNION-TRIBUNE
DATE:
05/09/97
SOURCE:
The San Diego Union-Tribune; SDU
CATEGORY: OP ED COLUMN;
(Copyright 1997)
Iwas on the South Lawn of the White House in 1990 when George Bush
signed the Americans with Disabilities Act, proclaiming "a new era of
equality" for "our fellow citizens with disabilities." I cheered the
new law like everyone else.
Seven years later, I see its manifestations.
They dug up the front lawn of the building where I work to triple the
number of handicap parking spaces. And though the spaces have never
been close to fully occupied, I nonetheless think it was a good thing
to do.
The elevator in the building where I work was retrofitted not so long
ago. Among other things, they lowered the elevator buttons below
waist level and affixed braille numerals beside them. And though 99
percent of my co-workers neither use a wheelchair or are blind, I
think that, too, was a good thing to do.
But even those of us who support the spirit of the ADA, who think it
is a good thing to reasonably accommodate the special needs of
competent, qualified disabled Americans, have to be troubled by some
of the law's unintended consequences.
Indeed, when President Bush proudly affixed his signature to the
disabled-rights legislation, he hardly could have imagined that of
all the discrimination complaints filed under the law most have come
not from Americans who are blind or deaf or those who use
wheelchairs, but from folk claiming back problems (that's right).
Nor could he have imagined that the definition of disability under
the law ("a physical or mental impairment that substantially limits
one or more of life's activities") would be so broadly interpreted as
to include drug and alcohol abusers.
That brings me to the guidelines issued by the Clinton Equal
Employment Opportunity Commission last week that specify how
employers are to accommodate workers with mental disabilities. In a
fell swoop, the EEOC has all but guaranteed an explosion of
discrimination lawsuits by workers claiming all manner of mental
health problems.
It would be fine if the government had specified the mental illnesses
covered by the ADA. Many, if not most, mental health experts can
agree with five -- schizophrenia, manic depression, severe
depression, obsessive-compulsive disorder and generalized anxiety
disorder.
All are legitimate, diagnosable mental disorders that can be treated
sufficiently to enable an individual to lead a productive work life.
But the EEOC has placed no limitation whatsoever on what may be
considered a mental disability. A worker can, for instance, claim a
"narcissistic personality disorder," the disability from which
court-martialed Army drill instructor Delmar Simpson purportedly
suffers.
Or he can claim a "sex addiction," like Michael Kennedy, who found
himself unable to keep his hands off a 14-year-old baby-sitter.
Exotic conditions
If workers can get some shrink or another to verify that they suffer
from exotic mental condition or another, then employers are required
under the EEOC's dictate to make every effort to accommodate them.
So a worker with a narcissistic personality disorder could be
entitled to a mirrored office where he can admire himself all day.
Or a worker addicted to sex could be entitled to watch porn films
during coffee breaks. The EEOC may dismiss these scenarios as absurd or farfetched, but the
agency's new rules bring them into the realm of possibility.
Indeed, in its guidelines, the EEOC says an employer may, for
instance, have to "provide room dividers, partitions or other
soundproofing or visual barriers between work spaces" for workers who
have problems concentrating because of a mental condition.
It also advises that employers should be understanding of workers who
are chronically late, who exercise poor judgment or who display
hostility to the boss or fellow workers because those traits "may be
linked to mental impairments."
These mandates are not reasonable. They do not merely provide
workplace equality for our fellow citizens with mental disabilities.
They give the mentally disabled workplace rights that are far above
those of not only non-disabled workers, but physically disabled
workers as well.
The ADA is a well-intentioned law that has yielded results that
neither Congress nor President Bush envisioned in 1990. Even
supporters of the law, like yours truly, recognize that the
definition of disability has proven overly broad and that the
workplace requirements imposed upon employers have become
increasingly unreasonable.
Chicago Sun-Times
COMMENTARY
Thursday, May 8, 1997*
26-60-AVW
Late for work? Plead insanity
12:41
ere's a quiz of your knowledge of
You shouldn't worry, she added, because
H
the New World Rules
With its guidelines on
a company is not required to enforce these
Say you're a businessman who
rules if it creates an "undue hardship."
has a warehouse worker whose clothing in
mentally ill workers, the
Yes, replied a business spokesman, but one
disheveled and tattered and whose behav-
person's hardship is another person's rea-
EEOC is creating yet another
From:EEOC CHICAGO
for toward fellow employees is rude and
sonable accommodation. Which means,
abrupt. This clearly violates your compa-
protected class of people.
once again, it will take years of court
ny's employee bandbook, which requires
decisions to sort It all out.
that workers must be neatly attired and
So how do you tell the difference between
that their interaction with follow workers
By
Byrne
employees who are botheaded, ebronically
must be courteous. So you:
late or nasty to co-workers just because
A. Refuse to let him treat your hard
they're jerks, from those who are hot-
workers like crud. You fire him.
headed, etc., because they're deranged?
B. Prove your compassion and enlight-
This way: A worker who wants to have his
enment by giving him fair warning that his
The short of it is that employers may not
would have you handle a chemical plant
bad behavior protected under the law will,"
conduct needs improvement. You offer to
discriminate against "qualified" mentally
worker who suffers from bipolar disorder.
in effect, have to bring a note from his
provide the necessary counseling, but warn
ill workers. That means that employers, in
Formerly called manic depression, it is
doctor, certifying that he is unhinged
him that in all fairness if he doesn't behave
a job interview, cannot ask whether the
characterized by bouts of great depression
What all this means is that if you are
better, you'll fire him.
applicant has a history of mental illness,
and periods of mania. Say the worker is
really troubled, your job is legally protect-
C. You inquire whether he's nuts, and if
including hospitalization. But once a men-
assigned to rotating day, evening and night
ed. You can stay. But if you aren't troubled
he is, you keep him around, trying to make
tally ill person is employed, you must take
shifts, creating a problem for the taking of
enough to be a threat to yourself and your
sure he's happy. That may mean changing
reasonable steps to "accommodate" him.
his medication. Under the EEOC's policy
co-workers, your job isn't protected. You
his work schedule to accommodate his
That might mean special working hours, or
guidance, reassigning him, unlike anyone
can go.
"special needs" or keeping other employ-
extra time off. Or special work areas for
else, to a single, steady shift would be a
In its rush to create legally protected
ess out of his way. You don't fire him,
those who bug their co-workers.
"reasonable accommodation."
classes of people, Washington has granted
because the government doesn't let you.
Any cow-orker who wonders why Joe
But don't even think of questioning
special rights and considerations to people
53
This being the '90s, I'm sure you picked
Blow is getting special, preferential treat-
whether it is smart and safe to have a
who engage in anti-social and destructive
the correct answer: C. Honest, I didn't
ment must not be told that Joe's got a
manic depressive working in the explosive
behavior, the sort of rights and consider-
make this up; this is a an example cited by
mental problem, or a disorder that legally
setting of a chemical plant.
ations the rest of us don't have.
the U.S. Equal Employment Opportunity
requires a "reasonable accommodation."
And if you ask the EEOC if it is serious
Makes you wonder about the mental
Commission in Its new "policy guidance"
All that co-workers may be told is that the
about the rude warehouse worker, it re-
health of the folks who made these rules.
(isn't government doublespeak grand?) for
company is "acting for legitimate business
sponds with a straight face that it was "a
how employers, under the Americans With
reasons or in compliance with federal law."
very carefully crafted example." After all,
Dennis Byrne is a member of the Sun-
Disabilities Act, must handle workers who
In other words, shut up and go away.
a spokeswoman said, he's "not a greeter at
Times editorial board. B-mail: dbyrne-
are craz
er, mentally ill.
Here, for example, is how the EEOC
Disney World."
@suntimes.com
828-90Γ 80/80'd 922-1
TITLE:
IS WORK MAKING YOU CRAZY? ADA HAS YOU COVERED
BYLINE: Bob Wiemer
DATE:
05/08/97
SOURCE: The Sacramento Bee; SBEE
(Copyright 1997)
SICK PEOPLE aren't funny, but some of the rules governing the
treatment of the mentally ill in the workplace are the very stuff of
farce. The Equal Employment Opportunity Commission, which
promulgated those rules last month, is what Tom Wolfe called a "flak
catcher," an employee or agency that absorbs criticism and even
vilification so elected officials can avoid political discomfort.
In this case, the EEOC is getting Congress out of a very
uncomfortable position. The Americans With Disabilities Act of 1990
is an unwieldy mish-mash of noble sentiments and cynical
accommodation to the notion that euphemism triumphs over all. Thus,
under its definitions, no one is crippled or handicapped. There are
only challenged people. The Americans With Disabilities Act renders
that nice, but sappy, sentiment into law.
Congress enacted the law because it was easier than facing the
lobbying tactics of the disabled. Marshaling a mass of twisted
bodies on gurneys and in wheelchairs is such an effective technique
that the disabled seldom leave Washington without the law they came
for. That's why bathroom accommodaCannot distribute vertically tions
and parking spaces for the handicapped far outnumber the people who
need them.
In extending this workplace equality to psychotics, Congress
magisterially declared it law and left the development of regulations
up to the EEOC, thus letting the commission take the blame for the
bill drafters' idiocies.
Among the regulations promulgated the other day are these:
Employers may not ask potential employees if they are mentally ill or
if they have a history of mental illness. Nor can they ask employees
who are known to be mentally sick if they have been taking their
medications. Nonetheless, employers must make a "reasonable
accommodation" to any acute-stage behavior that might pop up on the
job. Thus, an employee who is rude to co-workers or comes to work
looking dirty or disheveled can't be routinely disciplined if he or
she can convince a therapist that the behavior arises out of any item
on a constantly expanding list of mental and emotional diseases.
In his short essay "On the Verge of Dementia Praecox," humorist
Robert Benchley feared he was coming down with that malady because
one of the symptoms is an inability to concentrate. Benchley
confessed that someone could sit on his chest and shout in his face
and still not get his attention. Under EEOC regulations, an employer
would be required to install soundproofing or erect partitions or
other visual barriers to enhance concentration for someone such as
Benchley.
WHAT'S MORE, the regulations forbid the employer from disclosing a
worker's mental problems. So when people who behave strangely are
getting what seem to be special perks, including soundproofed,
private work spaces, schedule changes, job coaches or time off, other
employees are left to take up the slack and wonder about what's going
on.
The workplace trend toward using independent contractors and
casual part-timers can only be exacerbated by these regulations.
Where's the fairness in that? And where will the EEOC and the courts
draw the line on public safety? Will melancholy pilots or bus
drivers be allowed to work? And if not, what about suicidal
trailer-truck drivers?
i Wednesday, May 7, 1997
MAY-09-97
Spinion
/
Gary
Brookins,
Richmond Times-Dispatch
NO,YOU MAY NOT
ASKA JOB APPLICANT
ABOUT AHISTORY OF
12:41 From:EEOC
MENTAL DISABILITIES
THAT'S DISCRIMINATION.
CHICAGO
EEOC
BAOOKING
the
53
T-276
P.02/03 Job-328
TITLE:
ADA Guidelines Go Too Far
DATE:
05/06/97
SOURCE:
The Salt Lake Tribune; SLTR
(Copyright 1997)
When does an employer have the right to take corrective action
with an employee who becomes agitated by the noise of co-workers,
shows up late for work or refuses to work with a supervisor?
Possibly never, if Americans With Disabilities Act guidelines,
released last week by the federal Equal Employment Opportunity
Commission, are not rewritten.
Because employers could lose power to address job problems like
those described above, the workplace has just become less equitable
and reliable.
The irony is that these guidelines were a good idea. The act
directed employers to make reasonable accommodations for employees
with disabilities. It left the definition of `reasonable
accommodations" to the employer and employee. In most cases, that
seemed to work. But for obvious reasons, employees and employers
wanted more detail, particularly in the area of mental disability.
What they got was a lot of nonsense.
The accommodations the government now says are reasonable for a
mentally disabled employee include putting up barriers to isolate
people readily distracted by noise, reassigning workers to new, less
troublesome tasks, changing work schedules to better accommodate
medications and treatments, changing supervisors' management styles
and more. For example, an employee could be hired for a morning
shift and then tell an employer his or her mental disability requires
afternoon work. The change in schedule could be required.
More than management, however, it will be co-workers and mentally
disabled employees themselves who will pay the price for these
guidelines. That price will be paid in the form of resentment,
cynicism and possibly more subtle forms of job discrimination.
As it has done too often, the federal government went too far in
writing these ADA recommendations, and victims of this excess will be
the very people the standards were meant to protect. For the good of
the mentally disabled, the guidelines should be rewritten.
TITLE:
EMPLOYING MENTALLY ILL WORRIES BOSSES MANDATE FOR `PARITY'
TO OTHER
DISABILITIES OPENS UNCHARTED AREA
BYLINE:
Sheryl Gay Stolberg 1997, New York Times News Service
DATE:
05/06/97
SOURCE:
St. Louis Post-Dispatch; SLMO
(Copyright 1997)
IMAGINE, for a moment, that you are Joe Widgetmaker, chief
executive of a small, family-owned company. You hire a blind
person; you install Braille buttons in the elevator.
You hire a paraplegic; you build a ramp and lower the water
fountain. You do this because you are a nice guy. Not to mention
that federal law requires it.
But what if your foreman is depressed and sleepless and can't
show up on time to get the assembly line rolling? What if your
clerk has obsessive-compulsive disorder and persists in addressing
the same envelope 100 times?
Should every employer, in the words of Dr. Allan Lans, a New
York City psychiatrist, be required to offer "a little wheelchair
access for the mentally ill?"
That is precisely what the Equal Employment Opportunity
Commission ordered last week, with a clarification of the Americans
with Disabilities Act of 1990. Business owners, the commission
declared, may not discriminate against otherwise qualified workers
with mental illness.
They may not ask job applicants if they have ever been mentally
ill, and they must take "reasonable steps" to accommodate employees
with psychiatric or emotional problems.
That could mean anything from a flexible schedule for an
anxious person to a desk near a window for a person who grows
depressed with too little light to a quiet work space for a
schizophrenic.
Underlying this new set of rules is the assumption that
physical illness and mental illness should be treated as one and
the same. But can they? Are depression and schizophrenia akin to
diabetes and deafness? Does a troubled mind heal the way a broken
leg does?
In the world of psychiatry, this concept is known as parity.
And parity is what advocates for the mentally ill have been trying
to achieve for years.
Sens. Pete Domenici, R-N.M., and Paul Wellstone, D-Minn., both
of whom have had mental illness in their families, put the issue
prominently on the public agenda last year when they introduced a
law requiring that insurers set the lifetime and annual
reimbursement caps as high for mental illness as for physical
illness. Congress adopted the law; it will go into effect Jan. 1.
But the guidance from the Equal Employment Opportunity
Commission takes parity into some new territory, and there is
little agreement even among mental health experts about what parity
truly means.
Experts say certain mental illnesses are no harder to diagnose
or treat than physical ailments. And the mental illnesses that defy
easy diagnosis, such as minor depression and adjustment disorders,
are no trickier than, say, lower back pain - the most frequently
cited reason for claims filed under the Americans with Disabilities
Act.
But just how flexible must employers be? The National Institute
of Mental Health estimates that, in the course of a year, one in 10
Americans experiences some disability from a diagnosable mental
illness. Are they all entitled to allowances? Are sex addicts and
sadists supposed to have their illnesses accommodated at work?
These are deceptively hard questions at a time when every minor tic
seems to have a diagnostic label.
Fear Of A Backlash
To borrow a phrase from Dr. Peter D. Kramer, a psychiatry
professor at Brown University and author of "Listening to Prozac,"
this is an era of "diagnostic bracket creep."
Remember when attention deficit disorder was nothing more than
short attention span? Or when voyeurs - who are now included in the
Diagnostic and Statistical Manual of Mental Disorders - were simply
Peeping Toms?
Now nicotine dependence is classified as a psychiatric disorder
along with alcoholism and other serious drug addictions.
Does that mean that smokers need regularly scheduled breaks?
Can they sue if their bosses don't permit them?
That is probably not what Congress intended when it passed the
Americans with Disabilities Act. But there is so much skepticism
about the new interpretation of the act that some mental health
advocates fear a backlash against the mentally ill.
Among them is Dr. Kay Redfield Jamison, a psychiatry professor
at Johns Hopkins University who chronicles her own battle with
manic-depressive diso rder in her book "An Unquiet Mind."
"Psychiatry," she said, "has brought this on itself in some
respects by making everything a diagnosis and by being sort of
absurd, not really making clear-cut distinctions between very
serious illnesses and things tha t are part of the human condition."
Jamison said that mental health experts have debated about
whether health insurance coverage should be limited to five major
mental illnesses - severe depression, schizophrenia, manic
depression, obsessive-compulsive disorder and generalized anxiety
disorder. All are extremely debilitating, and all can be diagnosed
and treated.
Small Businesses Worried
Employers, particularly small-business owners, are terrified. A
physical disability is easy to spot. But illnesses of the mind are
much harder to see.
"The potential for abuse is greater for a small-business
owner," said Mary Reed, spokeswoman for the National Federation of
Independent Business Owners, which has 600,000 members. "It's more
obvious and can be proven more readily if someone is deaf or in a
wheelchair. But if someone has chronic lateness or a pattern of
hostility, it is more difficult for the small-business owner to
know that there is a legitimate disability."
Kramer, the author of the Prozac book, scoffs at the threat of
abuse. The stigma attached to psychiatric disabilities is so
strong, he said, that sufferers go out of their way to hide their
illness, not flaunt it. "I don't see people lining up to say, `I
have a mental illness. I need a day off from work.' "
Moreover, there is considerable evidence that people with
mental disabilities, even serious mental illnesses, can work
productively. Dr. David Drake, a research psychiatrist at Dartmouth
Medical School, has studied the experiences of more than 1,000
mentally ill people who work in entry-level jobs and has found that
they are typically very good employees whose only problems are
adjusting to the social milieu of the workplace, and not the work
itself.
But there are unanswered questions. Dr. David Mechanic,
director of the Institute for Health Care Policy and Aging at
Rutgers University, raises a crucial one: "At what point does the
need to make accommodations get in the way of productivity?"
That is exactly what Eammon McGeady is wondering. He is
president of Martin G. Imbach Inc. in Baltimore, a 50-person
company that builds piers, bridges and other marine construction
projects. His company, he said, is divided into crews of six
people; in each crew there is a crane operator.
"Now if that crane operator says to one of my superintendents,
`I can't come to work until 9 o'clock because I don't like to drive
in traffic. I have a phobia.' What do I do with the other five
folks?"
Ultimately, it will be left to the courts to decide, and this
is what frightens employers the most. Then again, accommodating
people with mental illness is hardly unprecedented.
Just last week, before the federal guidelines were announced,
the New York Mets disclosed that a pitcher, Pete Harnisch, would be
spending time on the disabled list. The reason: depression.
Lans, the New York City psychiatrist, is the director of the
Mets' employee assistance program. While he would not discuss the
Harnisch case, citing patient confidentiality, he said this was not
the first time a major league player had been placed on the
disabled roster for an emotional problem. And he was jubilant over
the new guidelines.
"Hooray!" he said cheerily. "The idea that the American
workplace is this strictly organized, highly functional, extremely
efficient group of people going about their business is something
out of '1984.'
"Humans are not like that. Humans are messy; no two are alike.
You can put them all in the same size cubicle, and they do
different things. Just look at how people decorate their cubicles,
they all have their own signatures. I'm not advocating the violent
overthrow of the American workplace, but a little humanism is not a
bad idea."
TITLE:
EEOC: POLITICAL ASYLUM
DATE:
05/05/97
SOURCE:
Richmond Times-Dispatch; RCHD
(Copyright 1997)
The government told employers today that they may not
discriminate against qualified workers with mental illness.
and
must take reasonable steps to accommodate employees with
psychiatric or emotional problems. The guidance, issued by the
Equal Employment Opportunity Commission.
said (employers) may
have to allow extra time off from work, alter work schedules or
assignments, and make physical changes in the workplace as a
`reasonable accommodation' for employees with mental disabilities.
Such disabilities may include major depression, bipolar
disorder (manic depression), schizophrenia, and personality
disorders
-- The New York Times.
MEMORANDUM
FROM: I.M. "Hugh" Morless, EEOC Director
TO: All employers
RE: Update of the 1997 Guidance Regarding Mentally Ill
Employees
Dear Employer:
As a lawful employer registered with the Department of Labor,
you are required by the 1990 Americans with Disabilities Act to
make reasonable accommodations to employees with disabilities.
Please be advised the following 1998 Amendments to the ADA have
been made to update the list of federally recognized disabilities
(Note -- you are required by law to post these addenda in a
prominent area of the workplace):
Part I: Addenda. Paranoid psychosis; dementia; criminal
insanity; catatonia (persistent vegetative state); morbidity
(death).
Part II: Definitions. (1) Reasonable accommodation: A
"reasonable accommodation" is now deemed to be one enabling the
disabled employee to perform up to the level of an abled employee.
For instance, in the case of an employee with carpal tunnel
syndrome, this might require the provision of an ergonomic
keyboard; in the case of an employee suffering from schizophrenic
delusions and withdrawal from reality, the employer may wish to
lock all other employees in a reinforced steel cage to guarantee
their safety.
Part III: Frequently Asked Questions.
Q: I own a small run-down hotel on a lonely stretch of highway.
My front desk manager has stashed his dead mother in an upstairs
room and taken to stabbing female guests with a kitchen knife when
they're in the shower. Can I terminate this employee?
A: No. Appropriate action in this situation would be to suggest
counseling for the employee or, should the employee decline
counseling, to suggest sensitivity training for guests who continue
to stigmatize such behavior as somehow "wrong" or "disturbed."
Q: As a regional branch manager for the U.S. Postal Service, I
have a number of employees who have begun brandishing firearms and
repeatedly muttering, "I see it -- coming here -- hell-wind --
black wings -- yog-Sothoth save me -- the three-lobed burning eye
-- in the House of Cthulhu my father lies dreaming." Should I be
concerned?
A: No. Obsessive-compulsive fixation on the coming of the Elder
Gods is recognized by the American Psychiatric Association's
Diagnostic and Statistical Manual (Fourth Edition) as a chronic
benign mental disorder; violence by Postal employees ("going
postal") will be similarly recognized in the Fifth Edition. As
such, employees exhibiting these traits are protected by federal
law against discrimination.
Q: One of my employees recently was hit by a bus and killed.
Can she be replaced?
A: Not without cause, and not until the EEOC has approved your
Form 765(c)(31), Request for Approval of Termination of Terminal
Employee. Refer to your state equal-employment office for further
restrictions.
UNFAVORABLE
LochyMountain news
Guaday. may 4,1997
16-90-1VV
12:40
THE INSIDE STORY
From:EEOC DENVER DISTRICT
It's just what the government ordered
EEOC says businesses must
You hire a paraplegic; you build a ramp
trist, be required to offer "a little whecl-
and lower the water fountain. You do this
chair access for the mentally ill"?
aid those with mental disorders
because you are a nice guy. Not to mention
That is precisely what the Equal
that federal law requires it.
Employment Opportunity Commission
By Sheryl Gay Stolberg
But what if your foreman is depressed
ordered last week, with a clarification of
and skepless and can't show up on time to
the American Disabilities Act of 1990.
The New York Times
get the assembly line rolling? What if your
Business owners, the commission
clerk has obsessive-compulsive disorder
declared, may not discriminate against oth-
Imagine, for a moment, that you are Joe
and persists in addressing the same enve-
erwise qualified workers with mental ill-
Widgetmaker, chief executive of 1 small fam-
1 lope 100 times?
ness.
ily-owned company. You hire ablind person;
Should every employer, in the words of
66
you install Braille battons in the elevator
Dr. Allan Lans, a New York City psychia
FLIP.TO
7.74A
Job-146 P.03/04 T-138
All disabilities to be treated as one and same
or treat than physical ailments.
backbsh against the mentally ill.
to know that there is 1 legitimate
Then again, accommodit
Continued from 3A
The mental illnesses that defy
Among them is Dr. Kay Redfield
disability."
people with mental illness is ha
They may not ask job applicants
easy diagnosis, like minor depres-
Jamison, a psychiatry professor at
Kramer, the author of the Prozac
ly unprecedented.
MAY-06-97
if they have ever been mentally
sion and adjustment disorders, are
Johns Hopkins University who
book, scoffs at the threat of abuse.
Just last week, before the fed
ill, and they must take "reason-
no trickier than, say, lower back
chronicles her own battle with
The stigma attached to psychiatric
al guidelines were announced,
able steps" to accommodate
pain - the most frequently cited
manic-depressive disorder in her
disabilities is so strong, he said,
New York Mets disclosed tha
12:41
employees with psychiatric or
reason for claims filed under the
book An Unquiet Mind.
that sufferers go out of their way to
pitcher, Pete Harnisch, would
emotional problems. That could
Americans With Disabilities Act.
"Psychiatry," she said, "has
hide their illness, not flaunt it.
spending time on the disabled 1
mean anything from a flexible
But just how flexible must
brought this on itself in some
"I don't see people lining up to
Yeason: depression
schedule for an anxious person, to
employers be? The National Insti-
respects by making everything a
say, I have a mental illiess. 1 need
Lans, the New York City
a desk near a window for à person
tute of Mental-Health estimates
diagnosis and by being sort of
a day off from work,' be said:
strist, is the director- of the
who grows depressed with too lit-
that, in the course of a year, one in
absurd, not really making clear-cist
Moreover, there is consideráble
employee assistance progr
tle light, to a quiet work space for
10 Americans experiences some
distinctions between very serious
evidence that people with mental
While Lans world not AM
a schizophrenic.
disability from a diagnosable men-
illnesses and things that are part
disabilities, even serious mental
the Harnisch case, citing. pati
Underlying this new set of
tal illness.
of the human condition."
illnesses, can work productively.
confidentiality, he said this was
rules is the assumption that phys-
Are they all entitled to
Jamison said that mental health
Dr. David Drake, a research
the first time a major
From:EEOC DENVER DISTRICT
ical illness and mental illness
allowances? Are sadists supposed
experts have debated about
psychiatrist at Dartmouth Medical
fer had been placed on the disab
should be treated as one and the
to have their illness ac-
whether health insurance cover-
School. has studied the experi-
meter for an emotional
same. But can they? Are depres-
commodated at work? These are
age should be limited to five major
ences of more than 1,000 mentally
Tie was jubilarit over the
siewand schizophrenia akin to dia-
hard questions at a time when
mental illnesses-severe depres-
il people who work in entrylevel
guidelines.
betes and deafness? Does a trou-
every minor tic seems to have a
sion, schizophrenia, manic depres-
jobs and has found that they are
"Hooray!" be said cheer
bled mind heal the way a broken-
diagnostic label.
sion, obsessive-compalsive disor-
typically very good employees
The idea that the Americ
leg does?
To borrow a phrase from Dr.
der and generalized anxiety
whose only problems are adjusting
workplace is this strictly the
Peter D. Kramer, a psychiatry pro-
disorder. All are debilitating, and
to the social milieu of the work-
nized, highly functional, extrem
Concept know as parity
fessor at Brown University and
all can be diagnosed and treated.
place and not the work itself.
efficient group of people go
author of Listening to Prozac, this
"What's unfortunate," she said,
But there are unanswered ques-
about their business is someth
In the world of psychiatry, this
is an era of "diagnostic bracket
"is that there is a huge science
tions. Dr. David Mechanic, direc-
out of 1984.
concept is known as parity, and
creep."
that underlies most of the major
tor of the Institute for Health Care
"Humans are not like th
parity is what advocates for the
mental illnesses in terms of diag-
Policy and Aging at Rutgers Uni-
Humans are messy; no two &
mentally ill have been trying to
Disorders newly labeled
nosis and treatment, but it gets
versity, raises a crucial one: "At
alike. You can put them all in 1
achieve for years.
canceled out by all this kind of
what point does the need to make
same size cubicle and they do (
Sens. Pete Domenici, R-N.M.,
Remember when attention
squishy stuff."
accommodations get in the way of
ferent things. Just look at h
66
and Paul Wellstone, D-Minn, both
deficit disorder was nothing more
productivity?"
people decorate their cubicl
of whom have had mental illness
than short attention span? Or
Rules scare business owners
That is exactly what Eammon
they all have their own signatur
in-their families, put the issue
when voyeurs - who are now
McGeady wonders. He is presi-
I'm not advocating the viele
prominently on the public agenda
included in the Diagnostic and Sta-
Employers, particularly small-
dent of Martin G. Imbach Inc. in
overthrow of the American WOI
last year when they introduced a
tistical Manual of Mental Disor-
business owners, are terrified. A
Baltimore, a 50-person company
place, but a little humanism is I
law requiring that insurers set the
ders - were simply Peeping
physical disability is easy to spot.
that builds piers, bridges and other
bad idea."
lifetime and annual reimburse-
Toms? Now nicotine dependence
But illnesses of the mind are much
marine construction projects.
But if nothing else,
ment caps as high for mental in-
is classified as a psychiatric disor-
harder to sce.
His company, he said, is divided
guidelines may heighten pub
ness as for physical illness. Con-
der along with alcoholism and
"The potential for abuse is
into crews of six people; in each awareness of just how many
gress adopted the law; it goes into
other serious drug addictions.
greater for a small-business
crew there is a crane operator.
pleare emotionally impaired
effect Jan. 1.
Does that mean that smokers
owner," said Mary Reed, spokes-
"Now if that crane operator
There are very few people W
But the guidance from the Equal
need regularly scheduled breaks?
woman for the National Federation
says to one of my superinten-
are completely mentally healt
Employment Opportunity Com-
Can they sue if their bosses don't
of Independent Business Owners,
dents,
'I
can't
come
to
work
until
9
or
"completely
mentally
ill,
mission takes parity into some
permit them? That is probably not
which has 600,000 members.
o'clock because I don't like to
Arthur Caplan, who heads
T-138 P.04/04 Job-146
new territory, and there is little
what Congress intended when it
"It's more obvious and can be
drive in traffic; I have a phobia.
Center for Bioethics at the'th
agreement even among mental
passed the Americans With Dis-
proven more readily if someone is
What do I do with the other five
versity of Pennsylvania. "I this
health experts about what parity
abilities Act. But there is so much
deaf or in a wheelchair. But if
folks?'
we are going to realize throu
truly means.
skepticism about the new inter-
someone has phronic lateness or a,
Ultimately, it will be left to the of policy that
Experts: say certain niental ar-
pretation of the act that some
pattern of hostility, it is more diffi-
collets to decide; and this is what force is much closer to
are
herder
mental health advocates fear
cult for the small-business owner
fright
employers/themost.
Allenthan
to
Mercus
Welbh
Breaks for Mental Illness: Just
What the Government Ordered
THE NEW YORK TIMES,
SUNDAY MAY 4, 1997
mental Illness as for physical Illness. Congress adopted
Peeping Toms? Now nicotine dependence is classified
By SHERYL GAY STOLBERG
the law; it goes Into effect next Jan. 1.
as a psychiatric disorder along with alcoholism and
But the 'guidance from the Equal Employment
other serious drug addictions.
MAGINE, for a moment, that you are Joe Widget-
Does that mean that smokers need regularly
Opportunity Commission takes parity Into some new
maker, chief executive of a small family-owned
scheduled breaks? Can they sue if their bosses don't
territory, and there Is little agreement even among
company. You hire a blind person, you install
mental health experts about what parity truly means.
permit them?
Braille buttons in the elevator. You hire a paraple-
That is probably not what Congress Intended when
gic, you build a ramp and lower the water fountain. You
Experts say certain mental illnesses are no harder
It passed the Americans With Disabilities Act. But
do this because you are a nice guy. Not to mention that
to diagnose or treat than physical allments. And the
/
there is so much skepticism about the new interpreta-
mental illnesses that defy easy diagnosis, like minor
tion of the act that some mental health advocates fear
Federal law requires It.
But what If your foreman is depressed and sleep-
a backlash against the mentally III.
less and can't show up on time to get the assembly line
Among them is Dr. Kay Redfield Jamison, a
rolling? What If your clerk has obsessive-compulsive
psychiatry professor at Johns Hopkins University who
disorder and persists in addressing the same envelope
Underlying the new rules is
chronicles her own battle with manic-depressive dis-
order in her book "An Unquiet Mind."
100 times?
Should every employer, In the words of Dr. Allan
the assumption that physical
"Psychiatry," she said, "has brought this on Itself
Lans, a New York City psychiatrist, be required to
in some respects by making everything a diagnosis and
offer little wheelchair access for the mentally III"?
illness and mental illness
by being sort of absurd, not really making clear-cut
That is precisely what the Equal Employment
distinctions between very serious illnesses and things
Opportunity Commission ordered last week, with a
should be treated as one and
that are part of the human condition."
clarification of the American Disabilities Act of 1990.
Dr. Jamison said that mental health experts have
Business owners, the commission declared, may not
the same. That's arguable.
debated about whether health Insurance coverage
discriminate against otherwise qualified workers with
should be limited to five major mental illnesses -
mental illness. They may not ask job applicants if they
severe depression, schizophrenia, manic depression,
have ever been mentally ill and they must take "rea-
obsessive-compulsive disorder and generalized anxi-
sonable steps" to accommodate employees with psy.
depression and adjustment disorders, are no trickler
ety disorder. All are extremely debilitating, and all can
chiatric or emotional problems.
than, say, lower back pain - the most frequently cited
be diagnosed and treated.
That could mean anything from a flexible schedule
reason for claims filed under the Americans With
"What's unfortunate," she said, "Is that there is a
for an anxious person, to a desk near a window for a
Disabilities Act.
huge science that underlies most of the major mental'
person who grows depressed with too little light, to a
But just how flexible must employers be? The
Illnesses in terms of diagnosis an.: treatment, but It
quies work space for a schizophrenic.
National Institute of Mental Health estimates that, in
gets canceled out by all this kind of squishy stuff."
Underlying this new set of rules is the assumption
the course of a year, 1 in 10 Americans experiences
that physical lllness and mental illness should be
some disability from a diagnosable mental Illness. Are
Employers Are Terrified
treated as one and the same. But can they? Are
they all entitled to allowances? Are sex addicts and
sadists supposed to have their illnesses accommodated
Employers, particularly small-business owners,
depression and schizophrenia akin to diabetes and
are terrified. A physical disability is easy to spot. But
deafness? Does a troubled mind heal the way a broken
at work? These are deceptively hard questions at a
time when every minor tic seems to have a diagnostic
illnesses of the mind are much harder to see.
leg does?
In the world of psychiatry, this concept is known as
label.
"The potential for abuse is greater for a small-
parity. And parity is what advocates for the mentally
To borrow a phrase from Dr. Peter D. Kramer, a
business owner," said Mary Reed, spokeswoman for the
psychiatry professor at Brown University and author
National Federation of Independent Business Owners,
III have been trying to achieve for years.
Senators Pete Domenici, Republican of New Mexi-
of "Listening to Prozac," this is an era of "diagnostic
which has 600,000 members. "It's more obvious and can
co, and Paul Wellstone, Democrat of Minnesota, both of
bracket creep."
be proven more readily if someone is deaf or in a
whom have had mental Illness In their families, put the
Remember when attention deficit disorder was
wheelchair. But If someone has chronic lateness or a
nothing more than short attention span? Or when
pattern of hostility, it is more difficult for the small-
issue prominently on the public agenda last year when
they introduced a law requiring that Insurers set the
voyeurs - who are now included in the Diagnostic and
lifetime and annual reimbursement caps as high for
Statistical Manual of Mental Disorders - were simply
1/3
WEEK IN REVIEW SECTION
2/3
THE NEW YORK TIMES, SUNDAY, MAY 4, 1997
It's Just What the
Government Ordered
Continued From Page 1
marine construction projects. His company,
he said, is divided into crews of six people;
business owner to know that there is a
in each crew there is a crane operator.
legitimate disability."
"Now if that crane operator says to one of
Dr. Kramer, the author of the Prozac
my superintendents, 'I can't come to work
book, scoffs at the threat of abuse. The
until 9 o'clock because I don't like to drive in
stigma attached to psychiatric disabilities is
traffic, I have a phobia, what do I do with the
so strong, he said, that sufferers go out of
other five folks?'
their way to hide their illness, not flaunt it.
Ultimately, it will be left to the courts to
"I don't see people lining up to say, 'I have a
decide, and this is what frightens employers
mental illness. I need a day off from
the most. Then again, accommodating peo-
work."
ple with mental illness is hardly unprece-
Moreover, there is considerable evidence
dented. Just last week, before the Federal
that people with mental disabilities, even
guidelines were announced, the New York
serious mental illnesses, can work produc-
Mets disclosed that a pitcher, Pete Har-
tively. Dr. David Drake, a research psychia-
nisch, would be spending time on the dis-
trist at Dartmouth Medical School, has stud-
abled. The reason: depression.
Dr. Lans, the New York City psychiatrist,
is the director of the Mets' employee assist-
ance program. While he would not discuss
It seems unlikely that
the Harnisch case, citing patient confidenti-
ality, he said this was not the first time a
people are going to be
major league player had been placed on the
disabled roster for an emotional problem.
lining up to say, 'I have
And he was jubilant over the new guidelines.
"Hooray!" he said cheerily. "The idea
a mental illness. I need
that the American workplace is this strictly
organized, highly functional, extremely effi-
a day off from work.'
cient group of people going about their busi-
ness is something out of '1984.'
"Humans are not like that. Humans are
messy; no two are alike. You can put them
led the experiences of more than 1,000 men-
all in the same size cubicle and they do
tally ill people who work in entry-level jobs,
different things. Just look at how people
and has found that they are typically very
decorate their cubicles, they all have their
good employees whose only problems are
own signatures. I'm not advocating the vio-
adjusting to the social milieu of the work-
lent overthrow of the American workplace,
but a little humanism is not a bad idea."
place, and not the work itself.
But there are unanswered questions. Dr.
If nothing else, the new guidelines may
heighten public awareness of just how many
David Mechanic, director of the Institute for
people are emotionally impaired.
Health Care Policy and Aging at Rutgers
"There are very few people who are com-
University, raises a crucial one: "At what
pletely mentally healthy or completely men-
point does the need to make accommoda-
tally ill," said Dr. Arthur Caplan, who heads
tions get in the way of productivity?"
the Center for Bioethics at the University of
That is exactly what Eammon McGeady
Pennsylvania. "I think we are going to
is wondering. He is president of Martin G.
realize through this kind of policy that our
Imbach Inc. in Baltimore, a 50-person com-
work force is much closer to Woody Allen
pany that builds piers, bridges and other
than to Marcus Welby."
What'to Do When the Limousine
Driver Is Manic-Depressive
To answer some of the questions that
der to combat dry mouth, a side-effect of
employers and employees have about
his psychiatric medications. This individ-
their obligations and rights under the
ual requests reasonable accommodation.
Americans with Disabilities Act (ADA),
In this example, the employer should con-
the Equal Employment Opportunity
sider either modifying its policy against
Commission issued a compliance guide.
drinking beverages at checkout stations
It includes cases designed to show, for
or modifying its policy limiting cashiers
example, how an employer would decide
to two 15-minute breaks each day plus a
whether an employee has a psychiatric
meal break, barring undue hardship.
disability that must be accommodated,
when a worker may be removed from his
position because his disability poses a di-
Sloppy Box-Loader
rect threat or when an employer can ask
about an individual's psychiatric dis-
An employee with a psychiatric disability
ability. Here are some of the examples.
works in a warehouse loading boxes onto
pallets for shipment. He has no customer
SUNDAY, MAY 4, 1997
contact and does not come into regular
contact with other employees. Over the
Lovesick Worker
course of several weeks, he has come to
THE NEW YORK TIMES,
work appearing increasingly disheveled.
An employee was distressed by the end of
His clothes are ill-fitting and often have
a romantic relationship. Although he con-
tears in them. He also has become in-
tinued his daily routine, be sometimes be-
creasingly anti-social The employee
came agitated at work. He was most dis-
company handbook states that employees
tressed for about a month during and im-
should have a neat appearance at all
mediately after the breakup. He sought
times. The handbook also states that em-
counseling and his mood improved within
ployees should be courteous to each other.
weeks. His counselor gave him a diagno-
When told that he is being disciplined for
sis of "adjustment disorder" and stated
his appearance and treatment of co-work-
that he was not expected to experience
ers, the employee explains that his ap-
any long-term problems associated with
pearance and demeanor have deteriorat-
this event. While he has an impairment
ed because of his disability
(adjustment disorder), his impairment
The dress code and co-worker courtesy
was short-term, did not significantly re-
rules are not job-related for the position
strict major life activities during that
in question and consistent with business
time, and was not expected to have per-
necessity because this employee has no
manent or long-term effects. This em-
customer contact and does not come into
ployee does not have a disability for pur-
regular contact with other employees.
pose of the ADA.
Application of these rules to this employ-
ee would violate the ADA.
Reckless Chauffeur
Loud Librarian
A limousine service knows that one of its
best drivers has bipolar disorder and had
A reference librarian frequently loses her
a manic episode last year, which started
temper at work, disrupting the library at-
when he was driving a group of diplomats
mosphere by shouting at patrons and co-
to around-the-clock meetings. During the
workers. After receiving a suspension
manic episode, the chauffeur engaged in
she discloses her disability, states that it
behavior that posed a direct threat to
causes her behavior and requests a leave
himself and others (he repeatedly drove a
of absence for treatment. The employer
company limousine in a reckless man-
may discipline her because she violated a
ner). After a short leave of absence, he re-
conduct standard - a rule prohibiting
turned to work and to his usual high level
disruptive behavior towards patrons and
of performance. The limousine service
co-workers - that is job-related for the
now wants to assign him to drive several
position in question and consistent with
business executives who may begin
business necessity. The employer, howev-
around-the-clock labor negotiations dur-
er, must grant her request for a leave of
ing the next several weeks. The employer
absence as a reasonable accommodation,
is concerned, however, that this will trig-
barring undue hardship.
ger another manic episode and that, as a
result, the employee will drive recklessly
The employer may make disability-re-
Medicated Saw Operator
lated inquiries, or require a medical ex-
amination, because it has a reasonable
An individual receives an offer for a job in
belief, based on objective evidence, that
which she will operate an electric saw,
the employee will pose a direct threat to
conditioned on a post-offer medical ex-
himself or others due to a medical condi-
amination. In response to questions at
tion.
this medical examination, the individual
discloses her psychiatric disability and
states that she takes a medication to con-
Cashier With Dry Mouth
trol It. This medication is known to some-
times affect coordination and the compa-
A retail employer does not allow individ-
my doctor determines that the individual
uals working as cashiers to drink bever-
experiences negligible side effects from
ages at checkout stations. The retailer
the medication because she takes a rela-
also limits cashiers to two 15-minute
tively low dosage. She also had an excel-
breaks during an eight-hour shilt, in addi-
lent safety record at a previous job,
tion to a meal break. An individual with a
where she operated similar machinery
psychiatric disability needs to drink bev-
while taking the same medication. This
erages approximately once an hour in or-
individual does not pose a direct threat.
TITLE:
New Washington rules: They may drive you mad
COLUMN:
Richard Oppel
BYLINE:
Richard Oppel
DATE:
05/04/97
SOURCE: Austin American-Statesman; AAS
(Copyright 1997)
Let's say you are always late for work. You make dumb decisions.
You threaten the guy or gal at the next desk. Are you a candidate
for a firing?
I'd have said yes, until last Tuesday.
That's when that question became blurry.
Why? Because how the boss treats the ``mentally impaired" in the
workplace under the Americans With Disabilities Act of 1990 became
the subject of clarification" by the Equal Employment Opportunity
Commission.
As in the case of some other directives from Washington, the
guidelines seem to confuse as much as clarify. While protecting the
mentally impaired, the new rules appear to disserve other workers and
make greater guesswork of the manager's job.
Robert Pear's article in The New York Times (published Thursday in
the American-Statesman) reported the government's advice to
employers: Don't discriminate against qualified workers with mental
illness. Don't ask job applicants if they have a history of mental
illness. And take reasonable steps to accommodate employees with
psychiatric or emotional problems.
So, if you are ``mentally impaired," you can go to the boss and
demand your own cubicle, better working hours and time off to deal
with your depression.
A critic of the EEOC's action runs the risk of being viewed as a
bigot mired in the ``myths, fears and stereotypes" of mental
illness, as the EEOC's associate legal counsel, Peggy Mastroianni,
described the environment.
We should not stigmatize mental illness. Many mentally ill work
productively. The EEOC's new guidelines say the following
afflictions are protected in the workplace: major depression, bipolar
disorder (manic depression), schizophrenia, obsessive-compulsive
disorder and personality disorders.
But a civil society is built on balancing individual and
collective rights, and clear lines to limit behavior that
encroaches.
A new Austin is emerging, an Austin of entrepeneurs who rely on
their wits, competitiveness, creativity and ability to allocate
capital and talent to produce new products and services. They are
bringing today's prosperity, and they and other proprietors of new
and fledgling businesses are the people I worry about most when I
think of the EEOC's new guidelines.
Under the rules, the employer may have to provide ``room dividers,
partitions or other soundproofing or visual barriers between spaces"
to help employees who have difficulty concentrating because of a
mental illness.
The EEOC's clarification is ambiguous doublespeak. Employers: 1)
are not required to "lower their standards for performance" but 2)
may have to allow extra time off from work, alter work schedules or
assignments and make physical changes in the workplace as a
``reasonable accommodation" for employees with mental disabilities.
Isn't tolerating no-shows or late-shows by employees a lowering of
standards? Isn't erecting room dividers to wall off an employee who
harasses others a lowering of standards?
Our government increasingly staggers deeper into obtuse ambiguity.
The EEOC guideline is government saying to the employer, "We won't
tell you what it is, but do the right thing, and if you're wrong,
beware." The practical effect of the welter of workplace
regulations, court rulings and enforcement customs is becoming a sea
anchor against the characteristics of enterprise: risk-taking,
efficiency, speed and high productivity.
But, still, you might argue, aren't workers better off in 1997
because of employment and workplace rules?
In many ways, they are. Parental leave has improved family life.
Reforms on the factory floor have made the workplace a safer place.
However, there is a relationship between the growing body of
regulations and new negatives in the private sector. If you are just
graduating from college, you know how difficult it is to get a
full-time permanent job of quality. Many young people face only
temporary, probationary or contract jobs.
Those lower-quality jobs were constructed by employers who believe
that once you hire someone, it is virtually impossible to fire them.
Screenings for drug use, which only a decade ago many saw as a
violation of privacy, now are standard practice because employers
can't afford to buy a career-long treatment liability.
Also, many small businesses are forced to merge and consolidate
because of the need for greater efficiency in responding to
regulations.
Worst of all, as long as laws and regulations protect the
unproductive worker, the productive worker cannot fully be rewarded.
The law of averages takes over.
The real insanity here is the new EEOC rules.
MAY-05-97 12:40
From:EEOC DENVER DISTRICT
3038661386
T-138 P.02/04 Job-146
Sat, 3, 1997
RockyMountain News
Rocky Mountain News
Larry D. Strutton, Publisher, President & Chief Executive Officer
Robert W. Burdlek, Editor
John Temple, Managing Editor
Vincent Carroll, Editor of the Editoria! Pages
Linda S. Droeger, Sunday Editor
"Give light and the people will find their own way"
EDITORIALS
Mandated job coaches?
THE ISSUE:
T
the government has
ability is wrong, at least when that disability
Guidelines for
issued some startling
has nothing to do with performance on the
employers' has-
guidelines further clarify-
job or the efficiency and safety of the work-
dling of mentally
ing the Americans With
place. But this law dictates that disabilities
III
Disabilities Act's provi-
be disregarded even when they are perti-
sions or: mental illness.
nent to a nost of business issues. It subordi-
What on earth can officials
nates a number of other values to just this
OUR VIEW:
have been thinking?
one, and it substitutes regulations written in
Second-guessing
Not only must employ-
Washington for the on-the-spot assess-
by courts will
ers refrain from inquiring
ments of managers.
become the rule
about a job applicant's
The members of Congress who voted for
mental history in deciding
the law may want you to think the excesses
whether to hire the per-
are not their fault because, after all, these
son, the guidelines say employers may have
interpretations are being promulgated by
to make extraordinary accommodations for
the Equal Employment Opportunity Com-
people with mental health problems. It
mission. The excuse doesn't work. When
might be necessary, for instance, to build a
Congress produces these laws, it too often
partition around someone if he is too easily
and quite knowingly leaves it to the bureau-
distracted by others. Or an employer might
crets to fill in the blanks. The members,
be required to provide a job coach for an
having shirked their basic duty, thus hope to
employee with certain sorts of psychologi-
get cover for their actions.
cal problems.
Perhaps, when all is said and done, the
The law can also mean that an employer
mental-illness provisions of the disabilities
will have to forego longstanding workplace
act will have accomplished some good, but
rules bothersome to a mentally disturbed
no one should pretend there have not been
employee. Even rude behavior or chronic
serious trade-offs, and no one should auto-
lateless might be signs of mental distur-
matically assume, either, that a comparable
bance. and defended on that basie.
amount of good could not have been accom-
If these particulars strike you as overkill,
plished through measures more respectful
that's because they are. To be sure, discrim-
of the liberties and rational capacities of
ination by an employer on the basis of a dis-
average Americans.
TITLE:
IN THE WORKPLACE
MENTAL ILLNESS RULES ARE STRETCHED TOO FAR
DATE:
05/03/97
SOURCE:
The Columbus Dispatch; CLMB
(Copyright 1997)
Federal officials seeking to help workers with psychiatric
disorders function successfully on the job have instead made it
more difficult for employers to comply with the law.
The Equal Employment Opportunity Commission issued guidelines
Tuesday that appear to stretch beyond reason the rules governing
employment of individuals with mental disabilities.
At issue are the steps an employer may be required to take to
accommodate the special needsof workers who are deemed qualified
but who suffer disabilities.
These afflictions might be major depression, schizophrenia,
obsessive-compulsive disorder, bipolar disorder and personality
disorders.
The commission advises employers to consider whether behavior
such as chronic lateness, open hostility and poor judgment may be
tied into a mental disorder. Many employers already are dealing
with such situations by providing circumspect assistance and timely
professional help.
In addition, however, an employer may be required to provide
"room dividers, partitions or other soundproofing or visual
barriers between work spaces" to help mentally ill workers
concentrate.
This departs from common sense. Indeed, it borders on the
preposterous.
Face it: Factories and offices are designed with productivity
in mind.
In many instances, employers willingly make changes to
accommodate workers who have physical or mental disabilities.
But there are reasonable, practical limits that even the
officials at the EEOC should recognize. Nobody should expect the
workplace to look like a treatment center.
THE WALL STREET JOURNAL THURSDAY, MAY 1, 1997
that person because (the manager has|
Mr. Newman. of Aon Consulting, re-
WORKPLACE
been put on notice that they may have a
calls a recent federal appeals court case
disability."
involving a woman whose anxiety disorder
Bianca Rhodes, chief financial officer
made speaking on the phone very difficult.
Employers Are
of Kinetic Concepts Inc., a health-care
The company she worked for reassigned
products company in San Antonio, Texas,
her to a clerical position. but the woman
says the guidelines "make it very tough for
still feared using the phone. and was hospi-
Wary of Rules
a manager." Most workplaces. she says.
talized for a lengthy period. She was
"are stressful and are very noisy. It's
eventually fired. Although the company
difficult to find a euphoric work environ-
won the case, he notes that even victorious
On Mentally Ill
ment."
lawsuits are very costly.
Dan Conti, director of the employee-
The guidelines have been issued at
assistance plan at First Chicago NBD
a time when many employers are cutting
Corp., says that as a psychologist he
back on mental-health coverage and hiring
By ELLEN JOAN POLLOCK
is very supportive of the ADA. but he
managed-care firms to scrutinize benefits.
And JOANN S. LUBLIN
believes that the guidelines may "back-
Staff Reporters of THE WALL. STREET JOURNAL
fire" at some companies. "I was concerned
Mr. Cutler, of the American Psychiatric
For managers, distinguishing between
when I first saw it,' he says. "It may make
Association, says he hopes that the guide-
a bad attitude and a mental illness is about
it difficult for corporations. and hence they
lines will encourage companies to provide
to become a lot trickier.
may retrench from it," he says.
coverage because it will lead to "more
New guidelines issued by the federal
He says that at his company, requests
cost-effective employment and reduced
government to help employers understand
for assistance often are referred to the
costs to the employer."
how the Americans With Disabilities Act
company's medical department and its
But some people who work in the
applies to people with mental illness sur-
human-resources department for review.
mental-health field are less hopeful. "The
prised many businesses and their lawyers
Many labor lawyers point out that compli-
new guidelines are a Catch-22," says Jim
by calling for broad accommodations for
ance with the new guidelines will be partic-
Wrich of Wrich Associates in Chicago. a
emotionally ill workers. The accommoda-
ularly difficult for small companies with no
mental-health consulting firm. "They will
tions include putting up barriers to isolate
medical experts on staff and no human-re-
work only If people suffering from mental
people readily distracted by noise. reas-
sources experts to help managers identify
illness or substance abuse get the right
signing workers to new tasks and making
problems.
help the first time - and that isn't likely at
changes in a supervisor's management
Advocates for the mentally ill applaud
all today because most companies have
style.
the guidelines and insist they won't be
adapted managed-care plans" that limit
Courts aren't bound to uphold the
financially onerous for companies. Jay
treatment, he says.
-Rochelle Sharpe
guidelines. but they often consider agency
Cutler, special counsel to the American
contributed to this article.
rules when deciding cases. The guidelines
Psychiatric Association, calls the guide-
are also significant because many compa-
lines "reasonable and responsible." point-
nies have had trouble grappling with how
ing out that they don't put a burden on
to comply with the ADA in cases where
employers to monitor an employee's medi-
employees have mental and not physical
cation. for example. The guidelines, he
problems.
says, "open the door to employment that
While the guidelines address a legiti-
should have always been open."
mate issue for many employees. they
Ronald Honberg. director of legal af-
create a new set of problems for em-
fairs for the National Alliance for the
ployers. "For me the bottom line is that
Mentally III, says that "most people under-
potentially it allows a jerk to hide behind
stand that somebody in a wheelchair
the ADA." says Christopher Bell, an
needs accommodation in the workplace.
employment lawyer at Jackson, Lewis.
It's less clear what kind of accommoda-
Schnitzler & Krupman in Minneapolis. "It
tions are necessary for someone with a
does this because it says traits such as poor
mental illness."
judgment. poor impulse control, curt and
Mr. Honberg says that his organiza-
rude behavior and chronic tardiness all
tion, which represents 140,000 mentally ill
can be symptoms of a mental impairment
people and their families, typically hears
that is a disability."
about requests for time off for treatment
Mr. Bell. a former lawyer for the
and requests for adjustments to work
Equal Employment Opportunity Commis-
schedules. For example, patients on some
sion. which issued the guidelines in March.
medications for depression or bipolar dis-
predicts that companies will end up having
order are sometimes groggy early in the
to spend a lot of money defending them-
morning. "A lot of these are just sort of
selves against claims filed by people who
common-sense-type steps. For the most
have been "disciplined for being rude or
part, these accommodations are not expen-
disheveled or yelling'at a supervisor
It
sive."
is a license for people with poor behavior to
But companies argue that disputes
claim discrimination."
resulting from the ADA mental-health
Many employers and consultants be-
rules can be very expensive. Almost two
lieve that companies will now have to
years ago, an arbitrator ordered Pacific
train managers on evaluating signs that
Gas & Electric Co. to pay $1.1 million,
workers have emotional problems. Barry
including attorneys' fees, in a suit brought
Newman, a consultant at Aon Consulting.
by a severely depressed staff lawyer who
says an employee's complaining that he is
asked for accommodations that included
"depressed and stressed" could be re-
time off after particularly heavy work
garded as a clue that a disability may be
periods and, according to PG&E attorney
at play. "Who doesn't use a phrase like
Kenneth Yang. a guarantee of satisfactory
that once in a while?" he asks. The
performance evaluations for about two
manager will have to be "very careful with
years.
ASSOCIATED PRESS -- May 1, 1997 (page one of two)
New guide may help, but jobs are still hard to find for mentally ill
By DEB RIECHMANN
Associated Press Writer
WASHINGTON (AP) - Six months ago, Glenn Kennington hired a man
to bus tables at the upscale restaurant he manages in suburban
Washington.
The man's psychiatric disability didn't bode well for contact
with customers, so he was assigned to dish washing. That job proved
too stressful, so Kennington switched him to scrubbing pots and
pans.
"He's in his own work area. There are no breakables. It's just
labor. He's found some success there," said Kennington, general
manager of Shelly's Woodroast in Rockville, Md.
Mental health advocates hope new federal rules will encourage
more employers like Kennington to hire people with psychiatric
disabilities and accommodate their conditions. But company
personnel directors say that while the guidelines are a good first
step, they leave many questions unanswered.
The 38 pages of guidelines were issued March 25 by the Equal
Employment Opportunity Commission, which wants to make it clear
that the Americans with Disabilities Act covers people with mental
disabilities - such as manic depression, anxiety disorders and
schizophrenia - as well as those with physical impairments.
Mental health experts say the EEOC guidelines give employers
practical answers to questions like "When can employers legally
ask about a psychiatric disability?" or "How far do employers
need to go in accommodating these employees?"
But, while happy to receive some direction on this often
tight-lipped subject, personnel directors say some of the advice is
confusing and appears to conflict with other laws.
The guidelines say employers do not have to accept less from
workers with psychiatric disabilities, but might be required, for
example, to change work hours for employees on medication, erect
cubicles around employees who have trouble concentrating, or let
workers wear earphones to block noise.
Ronald Honberg, director of legal affairs for the National
Alliance for the Mentally III, says only 10 percent to 15 percent
of people with mental illnesses have jobs.
It has been illegal for several years for employers to ask job
applicants about their mental histories. But Honberg says companies
have been slow to stop the practice because they falsely assume
these applicants will miss work, be violent or not be able to
handle any stress on the job.
ASSOCIATED PRESS -- May 1, 1997 (page two of two)
While he emphasizes that the majority of mentally ill people are
not violent, Honberg says the guidelines do make it clear that if a
person legitimately poses a threat to the health and safety of
other employees, an employer can let the worker go.
Michael Lotito, counsel to the Society for Human Resource
Management, which represents more than 80,000 company personnel
directors, says the guidelines are not that clear and also are not
easily reconciled with other federal laws, such as the Family and
Medical Leave Act.
For instance, when and what employers may ask about why leave is
needed and the paperwork required can differ depending on whether
disability or family and medical leave rules are followed.
"It's a good first draft," Lotito said. "But the EEOC has
taken a rifle shot at something that needs to be a much broader
picture."
Lotito is upset, for example, with the EEOC's advice in the
guidelines about a sample case involving a warehouse worker with a
psychiatric disability.
The worker does not deal with the public, but is rude to
co-workers and reports to work in torn clothes, despite the
company's policy requiring courteous behavior and a neat
appearance. When approached, the worker cites his disability, which
the employer cannot disclose to his co-workers.
The EEOC guidelines say that in this case, rigid application of
the company's policy for dress code and courtesy would violate the
Americans with Disabilities Act.
"If 10 employees come to you and say `Charlie is acting funny.
We're scared. What are you going to do about it?' The employer is
going to have a revolt on his hands if he says 'Sorry, I can't
discuss it, Lotito said. "And that does not further the cause
of people with disabilities."
The Washington Times
THURSDAY, MAY 1, 1997 / PAGE B7
BUSINESS
Mental illness covered by disabilities act
guidelines unfairly shift responsibility
By Samuel Goldreich
and are in denial and project their
guidelines could force a company to
THE WASHINGTON TIMES
to employers to deal with problems that
problems back onto the company.
shut down a worksite while a mentally
a potential employee keeps quiet.
These are the sort of people who really
disabled employee works out his prob-
Federal regulators say mentally ill
The 10-page EEOC guidelines sug-
should be terminated because they
lems.
employees have the same workplace
gest that companies might even need to
aren't responsive to treatment."
"We do not have the luxury of having
rights as physically handicapped work-
put up partitions or other sight and
One small-business advocate sug-
redundancy in any of our jobs so some-
ers under a law written to end discrimi-
sound barriers to isolate mentally ill
gested that the guidelines will force
one can fill in for another worker," said
nation against the disabled.
employees who cannot deal with rou-
employers to spend time ferreting out
Eammon McGeady, president of Mar-
Guidelines issued last month by the
tine workplace distractions.
personality problems.
tin G. Imbach Inc., a Baltimore-based
U.S. Equal Employment Opportunity
While EEOC officials say they have
"It's unbelievable that a small-
marine construction firm. "If a crane
Commission say people with psychiat-
simply clarified existing law, critics say
business owner can't ask if a job appli-
operator can't show up at 7 in the morn
ric disorders - such as depression and
the guidelines impose confusing new
cant has a mental health disability but
ing because he can't come in until 9
schizophrenia - are protected under
responsibilities on employers to diag-
then has
to accommodate someone
because he has a fear of driving
the 1990 Americans with Disabilities
nose whether an employee is mentally
on the job," said Mary Reed, a lobbyist
through traffic, what do I do?"
Act (ADA).
ill or is simply a poor worker.
for the National Federation of Indepen-
Many employers already have ad-
That means an employer may not
"Where problems really will arise
dent Business. "It may be obvious what
justed to requirements to accommo-
quiz potential workers about their
are in cases of what are called person-
an employer ought to do to accommo-
date wheelchairs for the physically dis-
mental health histories and may have
ality disorders," said mental health
date blindness or someone in a wheel-
abled, said Dr. Mary Jane England,
to change work rules to avoid adding
counselor Daniel Rees, coordinator of
chair but it's difficult to know how to
president of the Washington Business'
stress to those with disabilities.
the Human Relations in Management
accommodate someone who's manic
Group on Health (WBGH), a group that
Small-business advocates, mean-
Program at Western Maryland College.
depressive."
while, complained yesterday that the
"These are people who are disruptive
Other critics worry that the EEOC
see MENTAL, page B12
THURSDAY, MAY 1, 1997 *
The Washington Times
represents 175 major employer.
such as Pepsico and Hewlett-
Packard.
"This is nothing new," she said.
"The law was passed in 1990, and
it was our responsibility to provide
an accommodating workplace
whatever the disability."
The WBGH has been educating
members for four years on the
mental health implications of the
ADA and has published its own set
of guidelines. Dr. England said
that either the employer or em-
ployee could adjust their hours in
cases such as the one Mr. Mc-
Geaddy described
"This is not the bombshell that
has been portrayed," said lawyer
Tom D'Agostino, editor of the Na-
tional Disability Law Reporter,
who said the EEOC simply has em-
braced ADA case law that supports
its mental health guidelines.
While the guidelines do not have
the force of law, they reflect the
position the EEOC is taking in
court cases to enforce the ADA.
"This is not a signal of who we're
going to be suing next," said Ellen
Vargas, EEOC legal counsel. "It's
to help people to understand how
to voluntarily comply with the
law."
Mental illness issues have
prompted 9,126 complaints to the
agency in the last four years, sec-
ond only to allegations of discrimi-
nation involving back disorders.
When the guidelines were issued
last month, EEOC officials said
they were intended to give prac-
tical instruction on how employers
must provide an accommodating
workplace for the mentally ill.
But because the EEOC guide-
lines require that employers pro-
tect the privacy of a mentally ill
worker, it puts companies at risk of
suits from other employees who
complain about preferential treat-
ment, said Richard Block, a New
York corporate labor lawyer.
"If someone says, T'm stressed
and depressed and I need time off,'
most people would say there's
stress in the modern workplace.
Tough noogies," he said.
THE HERALD, THURSDAY, MAY 1. 1997
Mental
disability
work rules
spark outcry
FRONT
Employers fear
PAGE
abuses, lawsuits
By GREGG FIELDS AI
Herald Business Writer
New guidelines from the Equal
Employment Opportunity Com-
mission, which sharply expand
the work force protection of
employees suffering from psychi-
atric disorders like schizophre-
nia, have sparked a national out-
cry from critics contending they
will lead to costly litigation, lost
productivity and could even pre-
clude companies from maintain-
ing a safe and productive work-
place.
"I was very disappointed with
the guidelines," said Michael
Lotito, a San Francisco attorney
and board member of the Society
for Human Resource Manage-
ment. "It's simply not an accept-
able solution. They don't under-
stand what happens in the real
world."
But the EEOC said it's simply
interpreting the Americans with
Disabilities Act as it was passed
by Congress. The statute, which
took effect in 1992, has histori-
cally been used to fight work-
place discrimination against
1/2
those suffering from physical dis-
abilities, such as confinement to
a wheelchair.
But the language of the law
defines disability as "a physical
or mental impairment," and the
MIAMI HERALD
MIAMI HERALD
S-1-97
Mental illness rules criticized;
employers fear abuses, lawsuits
GUIDELINES, FROM 1A
head of the Academy of Occupa-
behavior didn't get in the way of
tional and Organizational Psy-
his job.
agency is now broadening the
chiatrists.
"This suggests that employers
grasp of the act by clarifying how
cannot enforce codes of conduct
companies must accommodate
Where to draw the line?
and common courtesy among
employees with psychiatric prob-
Grant said the guidelines are
co-workers," said Susan Meisin-
lems.
impractical because they pre-
ger, a senior vice president of the
"It brings mental illness to the
sume anti-social behavior may be
Society for Human Resource
same level as physical disabil-
due to a mental infirmity, which
Management.
ity," said Tom Loffredo, an
isn't always the case.
The irony is that the same
attorney with the Miami firm of
For instance, someone who
employee could be disciplined if
Holland & Knight.
can't get along with others may
he isn't suffering from a mental
In fact, the EEOC said nearly
or may not be suffering from a
disorder. The reason: He's not
13 percent of the complaints
mental impairment, he said.
protected by the ADA.
filed under the ADA relate to
"It should not be the employ-
psychiatric problems such as
er's burden to accept anything
Consistency defense
anxiety, depression, schizophre-
less because of an employee
That dual set of standards
nia and bipolar disorder, which
claim of mental disorder," he
could create potentially damag-
is sometimes referred to as manic
said. "It's not uncommon for
ing morale problems in the work-
depression.
people with personality disorder
place, said Richard Block, a New
"It provides practical instruc-
to have difficulty getting along
York attorney active in employee
with others, and they could now
discrimination cases. Particu-
tion to employers and persons
with psychiatric disabilities on
claim protection on the basis of
larly since the ADA bars compa-
that disorder."
their respective rights and
nies from saying why certain
responsibilities," Gilbert Casel-
Grant took particularly excep-
employees' behavior is being
las, EEOC chairman, said of the
tion to the EEOC guidelines
accommodated while others is
expanding the right of workers to
not.
guidelines.
demand time off because they're
"The key to good human
And the agency downplayed
stressed and depressed. "Well,
resource policy is to be consis-
contentions that workplace mis-
who isn't?" he said.
tent," Block said.
behavior must be tolerated. Mis-
Although companies can
That consistency is also a good
conduct, according to the guide-
require that the employee's con-
courtroom defense when compa-
lines, is still punishable. But
dition be certified by a health
nies face discrimination cases.
companies may not discriminate
professional, Grant said that, as a
But accommodating the ADA
merely because an employee suf-
practical matter, such a diagnosis
could strip them of that defense.
fers a condition that, in many
is relatively easy to obtain.
"The way to defend yourself is
cases, carries with it a social
The guidelines also restrict dis-
to say, We are consistent,"
stigma.
ciplinary actions a company may
Block said. "Now the plaintiffs
Nevertheless, the guidelines
take against an employee suffer-
can say, 'They are not consis-
were a shocker for human
ing from a psychiatric disorder.
tent.'
resource experts, who main-
In one example, the EEOC said
Nevertheless, others said the
tained that the rules are a pre-
a company would be violating
guidelines, if imperfect, may
scription for conflicts that will
the law if it disciplined a loading
nonetheless prove a watershed
inevitably be decided by the
dock employee who came to
event in allowing those who suf-
courts.
work disheveled, in torn clothes
fer from psychiatric disorders to
Though Corporate America
and was rude to co-workers.
lead productive lives, provided it
has made some progress in
The reason: The employee had
doesn't prove an undue burden
removing the stigma from mental
a psychiatric disability, and his
on their employer.
illnesses, and employee assis-
tance programs often cover treat-
ment for them, some felt that the
guidelines strip companies from
authority in dealing with on-the-
job behavior.
For instance, soundproofing
2/2
and visual barriers might have to
be constructed to "accommodate
individuals who have disability-
related limitations in concentra-
tion."
"That's absurd, and you can
quote me," said Brian Grant,
Als
Thursday, May 1. 1997
The Atlanta Journal
Covers Dixie Like the Dew
Opinion
ROGER S. KINTZEL. Publisher'
RON MAXTIN, Edicas
JOHN C. MELLOTT
JIM WOOTEN
JOHN WALTER
General Manager
Educal Plage Elber
Managing Idisor
JAMES M. cox. Cluimes, 1750-57 JAMES M COX JR Charmas 1957-74
New EEOC rules
hurt mentally ill
8
IT REASONABLE for employers B ask a job applicant whether
* abe has a history of mental illness? The Equal Employment
Opportunity Commission says no. We disagree.
The new rule relates to the 1990 Americans With Disabilities Act,
which was aimed at eliminating discrimination in the workplace OR
the pasis of physical or mental disability. That is a premise with
which few have any dispute. But rules, such as the ones the EEOC
Issued this week, push the principle beyond reason.
While declaring on coe hand that employers do not have to lower
their standards to hire someone with a serious mental illness, such as
schizophrenia or manic depression, the EEOC sets forth a list of
requirements for employers that equate to lower work standards. For
example, employers must:
a tolerate chronic lateness, poor judgment and hostility toward CO-
weekers;
hesist with Inability to concentrate by providing room dividers, par-
titlons, soundproofing or visual barriers;
. change the work schedule of an employee taking anti-depressants
that cause grogginess to the morning
Lbeware enforcing a dress code not clearly "job related."
We think such unressonable rules will boomerang on the very peo-
pie they are designed to help -by raising fears among otherwise con-
acientious employers that hiring a mentally at person is going to force
them to lower standards and spend unlimited amounts of money to
assist that individual for a lifetime.
Hiring incentives ought to run just the opposite, so that employers
who hire a mentally fil individual know about It up front and can
assist that person in meeting the job standards of everyone else.
Employers ought not be able to reject an applicant solely on the basis
past mental illness, and mental impairment, given modern-day
stments, need not Interfere with job performance. The creay thing
but the EEOC rules is that they enforce the notion it milt
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
May 2, 1997
Letters to the Editor
Atlanta Journal
P.O. Box 4689
Atlanta, Georgia 30302
To the Editor:
I read with concern your editorial discussing the EEOC's recently-issued enforcement
guidance on the applicability of the Americans with Disabilities Act to employees with
psychiatric disabilities. The editorial, which seriously misrepresents both the law and the
guidance, merely contributes to the unfounded beliefs that employers have about their obligations
under the ADA.
The editorial's basic premise -- that under the guidance an employer cannot learn whether
someone has a psychiatric disability until after the person has begun working -- is simply wrong.
The ADA and the guidance clearly state that after making a job offer but before employment has
begun, an employer may make disability-related inquiries and conduct medical examinations, so
long as it does so for all employees in the same job category.
The editorial also erroneously says that the guidance requires employers to tolerate poor
judgment, chronic lateness, and hostility toward co-workers. In fact, the guidance says that
traits such as irritability, chronic lateness, and poor judgment are not, in themselves,
impairments. Thus people who exhibit these traits are not necessarily people with disabilities
who are protected by the ADA.
Even when such traits are linked to a mental impairment, employers do not have an
unqualified obligation to excuse them. The guidance says that an employer may discipline an
employee with a psychiatric disability for violating conduct standards that are related to the
employee's position and necessary for the employer's business, so long as the employer
disciplines all employees who violate the rule in the same way. This is true even if the
employee claims that a psychiatric disability caused him or her to violate the rule. An employer
may also hold an employee with a psychiatric disability to the same performance standards as
all other employees.
Consistent with the ADA, the guidance says that an employer does have to make
reasonable accommodations that will enable an employee with a psychiatric disability to meet
conduct and job performance standards, once the employer knows of the existence of the
disability and a request for the accommodation has been made. However, your editorial never
mentions the concept of "undue hardship," which limits an employer's obligation to make an
accommodation that would be too costly or difficult, and thus creates the impression that an
employer's obligation to make accommodations is limitless.
The editorial also misleads employers to believe that the kinds of accommodations they
will need to make will always be expensive. In fact, many people with psychiatric disabilities
successfully work without accommodations at all; many others require accommodations that are
inexpensive and easy to make. Interestingly, the editorial mentions two such accommodations
-- the use of room dividers to eliminate noise or visual distractions and simple adjustments to
work schedules.
The editorial's message is that the "conscientious employer" will be so confused by the
guidance and so fearful about what the ADA requires it to do that it simply will choose not to
hire people with psychiatric disabilities. The Commission believes, however, that employers
have nothing to fear from the guidance, which is clear, reasonable, and consistent with the
ADA. The truly conscientious employer would be better served by reading the guidance than
by reading media accounts about it.
Sincerely
Gilbert F. Casellas, Chairman
Equal Employment Opportunity Commission
2
THE NEW YORK TIMES NATIONAL WEDNESDAY, APRIL 30, 1997
EMPLOYERS TOLD
Peggy R. Mastroianni, associate
ees have a history of mental illness,
legal counsel at the Equal Employ-
or whether they have been treated or
ment Opportunity Commission, said
hospitalized for such illness.
TO ACCOMMODATE
the guidelines were intended to ad-
After making a job offer, it said,
dress the "myths, fears and stereo-
the employer may require a medical
types" of mental illness.
examination, including a psychiatric
THE MENTALLY ILL
"We wanted to show that the law
examination, if the company re-
applies to people with psychiatric
quires all newly hired employees in
disabilities in the same way it ap-
the same job category to have such
plies to people with physical disabili-
examinations. But if the employer
ties," Ms. Mastroianni said. "This is
uses the results to screen out a per-
A NEW SET OF U.S. RULES
the first time we have explained, in a
son because of disability, "the em-
comprehensive way, how the law ap-
ployer must prove that the exclusion-
plies to people with psychiatric dis-
ary criteria are job-related and con-
abilities."
sistent with business necessity," to
Government, Following Up on
The new rules say employers
defend against a charge of job bias.
Disabilities Act, Lists Steps
should be alert to the possibility that
Moreover, the agency said, "an
traits normall" regarded as undesir-
employer must provide a reasonable
Companies Should Take
able chroni lateness, poor judg-
accommodation to the known physi-
ment, hostility to co-workers or su-
cal or mental limitations of a quali-
pervisors - "may be linked to men-
fied individual with a disability," un-
tal impairmen's."
By ROBERT PEAR
less doing so would impose "an un-
Under the guidelines, an employer
due hardship" on the operation of the
WASHINGTON, April 29 - The
may have to provide "room dividers,
business. Cost is a factor that may be
Government told employers today
partitions or other soundproofing or
considered in assessing hardship, the
that they may not discriminate
visual barriers between work
agency said.
against qualified workers with men-
spaces" to help employees who have
Ms. Mastroianni said the commis-
tal illness, may not ask job appli-
difficulty concentrating because of
sion had been flooded with questions
cants if they have a history of mental
mental illness. Experts said a person
about the 1990 law, mostly from em-
illness and must take reasonable
with schizophrenia, for example,
ployers. Here are some examples:
steps to accommodate employees
might be unusually sensitive to noise
9What should an employer do
with psychiatric or emotional prob-
and visual distractions in the work-
when an employee is not performing
lems.
place.
well and says he has depression?
The guidance, issued by the Equal
Likewise, the guidelines say, "an
(The employer, the commission said
Employment Opportunity Commis-
employer may be required to pro-
today, may have to make "reason-
sion to carry out the Americans With
vide a temporary job coach to assist
able accommodations," like chang-
Disabilities Act of 1990, said employ-
in the training of a qualified individ-
ing the worker's schedule, assigning
ers were not required to lower their
ual with a disability." Or, it said, a
him to a different job or altering the
standards for performance.
company may need to change the
method of supervision.)
But, it said, they may have to allow
work schedule of an employee taking
{Should an employer check on em-
extra time off from work, alter work
antidepressants that cause extreme
ployees to make sure they are taking
schedules or assignments and make
grogginess and lack of alertness in
medications needed to treat a mental
physical changes in the workplace as
the morning.
illness? (No.)
a "reasonable accommodation" for
Ronald S. Honberg, director of le-
Must an employer excuse the
employees with mental disabilities.
gal affairs at the National Alliance
The law defines disability as "a
for the Mentally III, hailed the guide-
physical or mental impairment that
lines, saying they "will be extremely
substantially limits one or more of
helpful to people with severe mental
Rules that address
the major life activities." But until
illness, employers, judges" and com-
now, the Government focused on
mission employees who investigate
'myths, fears and
physical disabilities and provided
complaints.
few answers to the many questions it
Employers' reactions were mixed.
received about the law's meaning for
"This guidance creates confusion
stereotypes.
people with psychiatric disorders.
for employers, especially small em-
Such disabilities may include ma-
ployers who don't have any special
jor depression, bipolar disorder
expertise," said Susan R. Meisinger,
conduct of an employee who threat-
(manic depression), schizophrenia,
senior vice president of the Society
ens co-workers because of a mental
obsessive-compulsive disorder and
for Human Resource Management,
impairment? (No.)
personality disorders; the commis-
which represents personnel direc-
The commission said employees
sion said.
tors at thousands of companies of all
need not use any "magic words" to
Nearly 13 percent of all complaints
sizes.
request a change. If an employee
filed with the commission under the
But Dr. Mary Jane England, presi-
asks for time off because he is "de-
disabilities law in the last four years
dent of the Washington Business
pressed and stressed," that is
- 9,216 of 72,687 - alleged discrimi-
Group on Health, which represents
enough to put the employer on notice
nation resulting from emotional or
175 big corporations like Pepsico and
that the worker is requesting a "rea-
psychiatric impairments, the largest
Hewlett-Packard, welcomed the
sonable accommodation," the agen-
source of complaints after back
guidelines, saying they clarified em-
cy said.
problems. The National Institute of
ployers' obligations.
If the worker's need is not obvious,
Mental Health says 1 in 10 Ameri-
The commission said that on job
the employer may ask for documen-
cans experiences some disability
application forms, employers may
tation from a doctor, to show that the
from a diagnosable mental illness in
not ask whether prospective employ-
worker has a psychiatric disability
the course of a year.
1042
2
Employers Told to Adjust for Mentally Ill
requiring time off, the rules say.
As an example, the agency de-
Michael J. Lotito, a San Francisco
scribed the case of a person with a
lawyer who advises employers on
psychiatric disability who works in a
labor law, said: "We have a long
warehouse loading boxes for ship-
history of accommodating physical
ment and has no contact with cus-
impairments of one kind or another.
tomers. Over several weeks, he re-
But we have much less experience
ports to work looking disheveled. He
with mental impairments. If you
is abrupt and rude on the rare occa-
have cancer or have lost an arm or
sions when he must talk to fellow
are blind in one eye, It's pretty clear.
employees. But his work has not suf-
But a person with a mental impair-
fered.
ment is often in denial. A person who
The company handbook says em-
is schizophrenic may not be in a good
ployees should have a neat appear-
position to describe the disorder or to
ance at all times and should be cour-
describe the accommodations that
teous to one another. The employer
are needed."
takes disciplinary action against the
The Government told employers
employee, who says his appearance
that all information on psychiatric
and demeanor deteriorated because
disabilities must be kept confiden-
of his disability.
tial, "on separate forms and in sepa-
The agency concluded that in this
rate medical files."
case, the dress code and co-worker
Moreover, it said, if employees ask
courtesy rules were not justified by a
questions about a co-worker who
business necessity, so the "rigid ap-
seems to be receiving preferential
plication of these rules to this em-
treatment, "the employer must not
ployee would violate the Americans
disclose any medical information."
With Disabilities Act."
Thus, it said, the employer may not
tell employees that a worker has a
disorder requiring a "reasonable ac-
commodation," but may explain that
the company is "acting for legiti-
mate business reasons or in compli-
ance with Federal law."
Federal officials said accommoda-
tions for workers with psychiatric
disabilities often cost less than the
changes needed to accommodate
physical disabilities, which may in-
clude widening doorways, installing
ramps or modifying bathrooms.
Laura L. Mancuso of the Conflict
Management Institute in Santa Bar-
bara, Calif., a consultant who has
advised hundreds of employers on
compliance with the 1990 law, said:
"Accommodations for workers with
psychiatric disabilities are, in most
cases, inexpensive or free. An em-
ployee with psychiatric problems
may initially need additional time
from supervisors or co-workers, but
research shows that the need tends
to fade over time."
The Government also said employ-
ers might run afoul of the law if they
rigidly enforced a dress code or rules
of conduct that were not "job-related
and consistent with business necessi-
ty."
66787 Hopenses
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
COMMISSION
May 1, 1997
Mr. R.W. Apple, Jr.
Washington Bureau Chief
The New York Times
1627 I Street, N.W.
Washington, D.C. 20006
Dear Mr. Apple:
New York Times reporter Robert Pear's story yesterday, Employers Told to
Accommodate the Mentally Ill, is an informative account of the guidance issued by the EEOC
to assist employers and others in complying with issues related to individuals with psychiatric
disabilities under Title I of the Americans with Disabilities Act (ADA). Unfortunately, Mr.
Pear erroneously indicated in his lead that the EEOC issued the guidance on April 29. The
guidance, in fact, was issued over a month ago on March 25 with a press release notifying all
major media about the availability of the guidance.
This error has caused a great deal of confusion on the part of your readers, among
them members of the disability community as well as your fellow reporters. They have
contacted the agency in attempts to clear up whether we have issued new guidance which
postdates the March 25 issuance. More disturbingly, a number of callers have voiced
disapproval over their not being notified more timely about important agency business.
Timely and informative education and outreach to the general public and agency constituents
has been one of the hallmarks of this agency's reinvention efforts. Through no fault on our
part, many may now believe that the agency has suffered a set back in this area.
Immediate calls were made yesterday to request that a correction be run in today's
Times. Calls were made to you, bureau editor Andrew Rosenthal, and to Mr. Pear. I was
successful only in talking to Mr. Pear directly. He said that he was doing a follow up piece,
which would address the misinformation. However, he did not say when the piece would run.
No correction appeared in today's paper. I hope you share my opinion that, under the
circumstances, an immediate correction is clearly warranted. Please feel free to contact me at
(202) 663-4902 if you have any questions or would like to discuss this matter further. Thank
you.
Sincerely,
Reginald A. Welch
Director of Communications
Philadel
MENTAL RULES JUST PLAIN NUTS
05/01/97
Newspaper: DAILY NEWS
Section: Editorial
Edition: Sports Final
Published: 05/01/97
Page: 50
Keywords: Thursday, Editorial, Mental Illness, Employe, Job, Law, Economic
Development, Bonus, Animal, Genes
MENTAL RULES JUST PLAIN NUTS
THE NEW FEDERAL directive to employers on discrimination against mentally ill workers is
well-intentioned, but, not to put too fine a point on it. a little crazy.
Like everyone else, the mentally ill deserve to be treated fairly in the work place. But the Equal
Employment Opportunity Commission's new guidelines are not equal or fair. In fact, they create a
new protected class with special rights.
Under its expanded interpretation of the 1990 Americans With Disabilities Act, the EEOC says
employers must take into account that if such undesirable traits as poor judgment, hostility and
chronic lateness are linked to mental impairments, they must be accommodated. Those are
loopholes that are an invitation to scams and a formula for endless litigation.
Employers still may demand that mentally ill employes be "qualified to perform the essential
functions of the job." But they also must provide extra time off for workers to deal with
psychiatric disablities. They must be prepared to modify schedules or jobs and provide job
coaches. They may be required to install "room dividers, partitions or other soundproofing or
visual barriers" to deal with emotional quirks.
When fellow employes complain that a co-worker is getting preferential treatment, employers
may say only that it is for legitimate business reasons or to comply with the law. This is a far cry
from the equal treatment the EEOC was created to enforce.
Agency Jawyers say the guidelines aim to erase "myths, fears and stereotypes." A noble goal. But
forcing employers to place some workers in a kid-gloves category smacks of mandated charity.
And special rights serve to confirm the stereotypes. Especially in light of the wide list of
disabilities covered, including depression, schizophrenia, obsessive-compulsive disorder and that
catch-all, "personality disorders."
Unlike physical disabilities, mental illnesses are difficult to define and harder to treat a factor
that makes the guidelines a bonanza for any worker savvy enough to use them to advantage
against employers fearful of costly and embarrassing litigation.
Witness this example: An employe asks for time off because he is "depressed and stressed." The
EEOC says that is all that is necessary to put an employer on notice that the worker may need
"reasonable accommodation" e.g.: a sabbatical, better working hours, more days off, maybe a
separate office far from the madding crowd. Hey, who doesn't?
With the National Institute of Mental Health estimating that one in 10 Americans suffers some
disability from a diagnosable mental illness, the rules make an inordinate proportion of the work
force eligible, by hook or by crook, for special treatment.
That's not only unfair. It's downright nuts.
Bonus babies
The mandate of the Economic Development Corp. is "to protect and enhance the city's job and
revenue base." Given that the agency doled out oodles in bonuses, some might assume its mission
is protecting and enhancing the revenues of its staff.
"Define 'oodles,' you might say. Sorry, but the EDC also is protecting and enhancing its
stonewalling skills, refusing to divulge the exact amount. It has indicated, however, that nearly all
210 employes got bonuses.
"For what?" you might ask. Supposedly for performance and tenure. Can't speak for
performance again, mum's their word but the agency has a rather liberal definition of "tenure."
Six months is apparently enough. That's how long Russell (Son of Ray) Harding,
$95,000-per-year senior vice president, had been on the job when he raked in a $3,300 bonus.
Ross Moskowitz, executive vice president for business recruitment and retention, got $10,472.
Twelve other veeps received bonuses ranging from $2,576 to $7,418. The total amount paid to
everyone else is still a secret.
Perhaps there is a reason for all this secrecy. It's human nature to try to prevent embarrassing
revelations. People might make fun of an agency that throws around public money.
And consider this: The EDC, an agency of 210 people, has 16 vice presidents. The U.S., a nation
of 260 million, has one.
Mayor Giuliani ought to be furning. He has been trying to convince the cops that they deserve
zero raises for the last two years. And nobody had a better year than the cops.
So here's the deal: Let the EDC veeps explain to the cops why they deserve a bonus and the
cops don't. If the cops can be persuaded, then those EDC people are worth their weight in gold.
Move over, Mickey
From the wires: NEW YORK (AP) With a single genetic switch, scientists have created a strain
of supermice two to three times more muscular than usual, with big, broad shoulders and massive
hips.
At least they won't have to work out anymore.
Slug: ED01ED.EDT
Number
NOTICE
915.002
EEOC
Date
3-25-97
OLC.
1.
SUBJECT: EEOC Enforcement Guidance on the Americans with Disabilities
Act and Psychiatric Disabilities
2.
PURPOSE: This enforcement guidance sets forth the Commission's position
on the application of Title I of the Americans with Disabilities Act of 1990 to
individuals with psychiatric disabilities.
3.
EFFECTIVE DATE: Upon receipt.
4.
EXPIRATION DATE: As an exception to EEOC Order 205.001, Appendix B,
Attachment 4, § a(5), this Notice will remain in effect until rescinded or
superseded.
5.
ORIGINATOR: ADA Division, Office of Legal Counsel.
6.
INSTRUCTIONS: File after Section 902 of Volume II of the Compliance
Manual.
3-25-97
Date
Chairman
The subject Enforcement Guidance is available on the bbs and may be downloaded
from the OLC Library under the file name "PSYCH.ADA."
DISTRIBUTION: CM Holders
REVISED EEOC FORM 106 (6/91)
PREVIOUS EDITIONS OF THIS FORM ARE OBSOLETE AND MUST NOT BE USED
Enforcement Guidance:
The Americans With Disabilities Act
and Psychiatric Disabilities
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
1
42 U.S.C. §§ 12101-12117, 12201-12213 (1994) (codified as
amended).
2
H.R. Rep. No. 101-485, pt. 3, at 31-32 (1990) [hereinafter House
Judiciary Report].
3
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.
EEOC Enforcement Guidance:
The Americans with Disabilities Act and Psychiatric Disabilities
TABLE OF CONTENTS
INTRODUCTION
1
WHAT IS A PSYCHIATRIC DISABILITY UNDER THE ADA
2
DISCLOSURE OF DISABILITY
12
REQUESTING REASONABLE ACCOMMODATION
19
SELECTED TYPES OF REASONABLE ACCOMMODATION
23
CONDUCT
29
DIRECT THREAT
33
PROFESSIONAL LICENSING
36
INDEX
37
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
1.
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,
4
The analysis in this guidance applies to federal sector complaints of
non-affirmative 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).
5
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).
6
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.
2
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 courts⁷ 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
7
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
").
8
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).
9
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.
3
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
2.
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
10
See DSM-IV chapter "Other Conditions That May Be a Focus of
Clinical Attention."
11
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).
12
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).
13
Id, § 902.2(c)(4), Definition of the Term "Disability," 8 FEP Manual
(BNA) 405:7258 (1995).
4
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
3.
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
4.
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
14
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).
15
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.
16
Sleeping is not substantially limited just because an individual has
some trouble getting to sleep or occasionally sleeps fitfully.
17
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).
5
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.
5.
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.
6.
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
18
42 U.S.C. § 12102(2) (1994).
19
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).
6
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
21
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).
22
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).
7
went off medication²³ or needed to have dosages adjusted, or a description of
his/her condition before starting medication. 24
7.
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
23
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).
24
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).
25
EEOC Compliance Manual § 902.4(d), Definition of the Term
"Disability," 8 FEP Manual (BNA) 405:7273 (1995).
26
Id., 8 FEP Manual (BNA) 405:7271.
8
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.
8.
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
27
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).
9
9.
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.
10. 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.
28
29 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).
10
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.
11.
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 long-term 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,
29
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.
30
A 1994 survey of 1,000 American adults reports that 71% averaged
(continued...) )
11
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.
12. 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.
( continued)
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.
12
13. 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.
14. When may 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,
31
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).
32
Enforcement Guidance: Preemployment Disability-Related Questions
and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995).
33
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.
13
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
34
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.
35
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.
14
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. 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 functions³⁹ 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
36
EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 6-7, 8 FEP Manual (BNA) 405:7193-94
(1995).
37
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).
38
42 U.S.C. § 12112(d)(4) (1994); 29 C.F.R. § 1630.14(c) (1996).
39
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).
15
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
40
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
").
41
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.
42
Of course, an employer would be justified in taking disciplinary action
in these circumstances.
16
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-for-
duty 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.
15. 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:
43
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).
17
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
16. 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.
44
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).
18
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.
17. 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
45
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).
46
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).
47
See Question 21 infra about employers requesting documentation after
(continued...)
19
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 rèquest 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.
18. 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
( continued)
receiving a request for reasonable accommodation.
48
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).
20
disability. 49 Of course, an employee may refuse to accept an accommodation
that is not needed.
19.
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
20.
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
49
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).
50
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).
51
As a practical matter, it may be in the employee's interest to request a
(continued...)
21
21.
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
51 ( continued)
reasonable accommodation before performance suffers or conduct problems occur.
52
EEOC Enforcement Guidance: Preemployment Disability-Related
Questions and Medical Examinations at 6, 8 FEP Manual (BNA) 405:7193 (1995).
53
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).
54
See Question 17, Example A, supra.
22
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.
22.
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
job-related 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
55
Employers also may consider alternatives like having their health
professional consult with the employee's health professional, with the employee's
consent.
56
The Job Accommodation Network (JAN) also provides advice free-of-
charge 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
(continued...
23
discuss selected types of reasonable accommodation that may be effective for certain
individuals with psychiatric disabilities. 57
23. 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
(...continued)
reached at 1-800-ADA-WORK.
57
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).
58
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 ").
24
of concentration in the morning. Depending on the job, a later schedule can
enable the employee to perform essential job functions.
24. 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.
25. 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.
59
42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1996).
25
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
26.
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
60
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).
61
See 29 C.F.R. pt. 1630 app. § 1630.15(b), (c) (1996).
62
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
(continued...)
26
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.
27. 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.
28. 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
( continued)
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).
63
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.
27
barrier that is unique to the workplace. When people do not take medication as
prescribed, it affects them on and off the job.
29. 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.
64
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.
65
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).
66
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).
28
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.
30. 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.
67
42 U.S.C. § 12112(b)(6) (1994); 29 C.F.R. § 1630.10, .15(c) (1996).
68
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").
29
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.
31. 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
30
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.
69
See 29 C.F.R. § 1630.15(d) (1996).
70
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.
31
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
32. 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
71
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.
72
If the employee requests reasonable accommodation in order to
address the misconduct, the employer must grant the request, subject to undue
hardship.
32
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. 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
73
See 42 U.S.C. § 12113(b) (1994).
74
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
75
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.
76
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
77
29 C.F.R. § 1630.2(r) (1996).
78
29 C.F.R. pt. 1630 app. § 1630.2(r) (1996).
79
House Judiciary Report, supra n.2, at 45.
33
33. 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.
34. 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.
34
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.
35.
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
35
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.
36. 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.
80
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).
36
INDEX
Conduct Standards
29-32
Medication
32
Reasonable Accommodation
30-32
Confidentiality
17-18
Direct Threat
33-36
Disability (Definition of)
2-12
Disability-Related Questions and Medical Examinations
13-17
Pre-Offer (Application Stage)
13-15
Post-Offer/Preemployment
15
Employment
15-17
Disclosure of Disability
12
Illegal Use of Drugs
3
Impairment (Mental)
2-4
Conditions That Are Not Impairments
3, 4
Personality Traits and Behaviors
4
Major Life Activities (In General)
5
Caring For Oneself
5, 12
Concentrating
5, 10-11
Interacting With Others
5, 10
Learning
5
Performing Manual Tasks
5
Sleeping
5, 11-12
Speaking
5
Thinking
5
Working
5
Medications
6-8, 27-28, 32, 34
As Mitigating Measure
6-8, 9, 12
Effect on Direct Threat Determination
34
Effect on Misconduct
32
Reasonable Accommodation
27-28
Professional Licensing
36
Reasonable Accommodation
13-15, 18, 19-28
Conduct Standards
30-32
Documenting Need for Reasonable Accommodation
22-23
Equipment
25
Job Coach
27
Modifying a Workplace Policy
25-26
Physical Changes
25
Reassignment
28
37
Request for Reasonable Accommodation
19-21
Supervisory Methods
26-27
Time Off/Modified Work Schedule
24-26
Substantial Limitation of Major Life Activities
5, 6-12
Chronic, Episodic Disorders
9
38