ENSURING FREEDOM TO COMPETE IN THE WORKPLACE
Passage of the Americans with Disabilities Act (ADA) in 1990 extended federal protection from discrimination on the basis of disabilities—including hidden disabilities—to the private sector workplace, thereby establishing the freedom for all Americans to compete on a level playing field. Among many hidden disabilities, psychiatric disabilities are perhaps the most misunderstood and subject to myths, stereotypes and stigma, resulting in high unemployment and underemployment of qualified individuals and denial of equal opportunities.
Since July 26, 1992, the effective date of the ADA, there have been more than 189,600 charges of employment discrimination filed nationally under the ADA, of which about 28,470 have been based on psychiatric disabilities such as anxiety disorders, depression, bipolar disorder and schizophrenia. In addition to enforcing the ADA, the U.S. Equal Employment Opportunity Commission (EEOC) educates the public and employers about the rights and responsibilities of businesses, employees and job applicants, and also provides information about reasonable accommodations and about hiring and retaining qualified individuals with disabilities.
Under the ADA, people with disabilities should be assessed individually so that their knowledge, skills, abilities and talents, not their diagnoses, are the focus. The EEOC hopes that an active education process will help raise sensitivity and shatter generalizations and misunderstandings about mental conditions. Scientific advances have demonstrated that mental disabilities are complex brain conditions which may result from an interplay of factors such as genetic predisposition, chemical imbalances, physical brain injuries, environmental conditioning, etc. With this knowledge, Americans may become more accepting of the reality that psychiatric conditions have nothing to do with individuals’ character, moral fiber or ability to make multi-faceted contributions as employees. Accommodations allowing people with psychiatric disabilities to perform effectively in the workplace are usually low-cost and relatively easy to implement.
Title I of the ADA addresses employment, covering the full spectrum of employment issues including the job application process, hiring, assignment, wages, training, benefits, discipline, promotions, harassment, privileges of employment and terms and conditions. The ADA specifically prohibits retaliation for opposing discrimination, participating in an EEOC investigation or requesting reasonable accommodation. Workplace issues frequently relevant for people with mental conditions are confidentiality, hiring and reasonable accommodations.
Due to the stigma of psychiatric disabilities in our society, many workers are understandably fearful of disclosing mental health issues to their employers. In reality, many of us are already working closely with capable coworkers who have mental conditions; we may simply be unaware that they have disabilities from time to time affecting their mental or emotional health. Unfortunately, myths and misconceptions abound in the workplace and in society about these conditions and those who have them.
The ADA provides protection for all people, whether or not they have disabilities, in maintaining the confidentiality of medical information and records. Employers must maintain separate medical files from their personnel files, must restrict access to those records, and cannot disclose medical information, even after an employee leaves (exceptions include sharing information with supervisors for necessary restrictions and reasonable accommodations, with first aid and safety officials for emergency situations, with government officials who enforce compliance with the ADA, with workers’ compensation agencies, and with insurance carriers as required for coverage).
Additionally, employers may not make medical inquiries or require physical exams at the application, interview or pre-offer stage of employment. Following an offer of employment, however, an employer may ask any medical questions, whether job-related or not, as long as the employer does so across-the-board for all employees entering the job category, not just for a single individual. If a person is rejected based on a medical reason it must be job-related and consistent with business necessity. At this early stage, however, many prospective employees are still reluctant to disclose psychiatric disabilities because of concern about negative consequences.
Breaches of confidentiality by the employer or management can adversely affect people with disabilities, especially if the disability is psychiatric. If a breach of confidentiality results in harassment toward the individual or in ostracism by coworkers, the employer will also be liable. Managers must be vigilant and proactive in ensuring a workplace free from unlawful harassment and can promote the acceptance of all by modeling respectful behavior themselves.
Although it is unlawful for an employer to ask medical questions or to ask about the existence, nature or severity of any disability at the applicant stage, individuals may choose on their own to self-disclose their disabilities at any stage of employment. When might it be beneficial to self-disclose? (1) When the employer is a state, local or federal government agency or federal contractor, or is required by one of these entities to have an affirmative action plan for the benefit of people with disabilities in hiring and promotion; (2) When the person with a disability has enriched his or her qualifications for the job as a result of having a disability; (3) When the disability itself is a requirement for the job (such as when rehabilitated drug addicts will become employed as counselors working with addicts during a rehabilitation program).
WHAT PSYCHIATRIC DISABILITIES ARE RECOGNIZED UNDER THE ADA?
The definition of an individual with a disability under the ADA is unique: a person having a physical or mental impairment (or a combination of two or more impairments) that substantially limits a major life activity compared to the average person in the general population; a person with a record of such impairment; or a person who is regarded as having such an impairment. An individual with a disability qualifying for protection under the ADA is a person who meets the job-related requirements of a position, with the knowledge, skills, abilities and experience required for the job, and who with or without reasonable accommodation can perform the essential functions of the job. There should be an individualized assessment on a case-by-case basis, because functional limitations caused by psychiatric disabilities vary among individuals with the same condition.
Employers should not make assumptions that people with unpleasant personality traits have mental illnesses and should avoid making generalizations about psychiatric conditions. Unpleasant personality traits make others difficult to get along with, but they do not necessarily limit major life activities and are frequently not indicative of diagnosable psychiatric conditions (which, by contrast, are often hidden).
Keep in mind that not all people with psychiatric disabilities are protected under the ADA. The individual must have a mental impairment that substantially limits a major life activity. Conditions listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) that qualify as mental impairments if they either prevent or significantly restrict a major life activity include anxiety disorders, depression, bipolar disorder, schizophrenia, obsessivecompulsive disorder, post-traumatic stress disorder, mental retardation, organic brain syndrome, learning disabilities and neurological disorders.
Not every condition listed in the DSM qualifies for protection by the ADA, however. Conditions such as pyromania, kleptomania, pedophilia, compulsive gambling and various sexual disorders are specifically excluded as disabilities under the ADA. A person who currently uses drugs illegally is not protected under the ADA; however, rehabilitated drug addicts or those currently undergoing rehabilitation are considered as individuals with a disability under the ADA, as are people with alcoholism. Personality traits such as irritability, poor anger management, impulsivity and poor judgment are also not covered under the ADA.
Short-term conditions, such as the depression many of us experience from the loss of a loved one, are not qualifying disabilities. The ADA specifically applies to chronic, long-term conditions. However, episodic conditions are covered if the person is substantially limited during episodes and there is a high likelihood they will recur.
The symptoms of some psychiatric conditions can be lessened or controlled with medications, but both the positive and negative effects of medications must be considered when evaluating the impact on major life activities. Reasonable accommodations may be required due to side effects of medications when employees rely upon them to control their conditions (for example, flexible time schedules if medications are sedating).
WHAT MAJOR LIFE ACTIVITIES ARE MOST AFFECTED BY PSYCHIATRIC DISABILITIES?
The effect on major life activities varies from case to case and requires an individualized assessment. With medication some people may not experience any impact from their psychiatric conditions on the main components of their day-to-day functioning. Some individuals experience severe interference during intermittent episodes, with very little interference in-between, and need support primarily to lower stress so they can recover more quickly. Others need accommodation on a more regular, ongoing basis to lessen the effect of a chronic barrier.
Some of the major life activities that can be affected by psychiatric disabilities include caring for oneself, interacting with others, concentrating, assimilating and remembering new information, sleeping, speaking or writing.
WHAT REASONABLE ACCOMMODATIONS ARE REQUIRED UNDER THE ADA?
Employers must provide reasonable accommodations to applicants and employees for known qualifying disabilities, as long as doing so does not cause undue hardship. Reasonable accommodations may include making facilities accessible, restructuring jobs to change or re-delegate marginal functions, adapting work schedules, acquiring or modifying equipment or devices and providing additional unpaid leave (even beyond what is available with the Family Medical Leave Act). As a last resort, if an employee is unable to perform the current job with accommodations, reasonable accommodation may include reassignment to another vacant position within the company if this change is voluntary and mutually agreeable.
WHAT SHOULD AN EMPLOYER DO WHEN AN ACCOMMODATION REQUEST IS RECEIVED?
Accommodation requests most often come from the individual with the disability, but may also come from family members or from a variety of health care professionals. Since mental illnesses are not obvious, the employer may request reasonable documentation indicating the medical condition, the limitations it places on functioning and the need for accommodation. Employers should accept requests and documentation from a variety of health care professionals such as primary care physicians, psychiatrists, psychologists, psychiatric nurses, clinical social workers, licensed counselors, psychiatric rehabilitation specialists and other licensed mental health professionals. To facilitate release of this limited medical information to the employer, the person with a disability may be asked to sign a limited medical release authorization that itemizes the questions being asked. Employers are not entitled to complete medical records.
It is crucial that both the individual with a disability and the employer engage in open communication in an interactive process to identify which job tasks or functions need to be adjusted and how to best accomplish these accommodations. The employer needs to meet with the person with a disability or that person’s representative expeditiously and should seek the individual’s input by asking what changes are desired. The employer should consider those suggested changes first, and if appropriate offer and discuss available alternatives. Many free resources, such as those offered by the Job Accommodation Network, a federally subsidized nonprofit organization providing free assistance for methods of accommodation, can assist in identifying low-cost accommodations.
Many employers have set up mechanisms, developed policies and procedures and trained staff to address reasonable accommodations in the workplace. Accommodation allows employers to use their human resources in ways where each individual can be most effective; accommodation is good management.
WHAT ARE SOME EXAMPLES OF EASY WAYS TO ACCOMMODATE A PERSON WITH A MENTAL DISABILITY IN THE WORKPLACE?
Not all people with psychiatric disabilities will need accommodations, and some accommodations may be needed only temporarily or intermittently. Many people with undisclosed disabilities perform outstanding jobs without ever needing to request any accommodations. Consequently, their peers and supervisors would be surprised to learn of their hidden disabilities. The good news is that when accommodations are needed for psychiatric conditions, they are usually low-cost and often require no out-of-pocket expenditures for employers. They do not typically require purchase of technology, equipment or devices, but rather focus on sensitivity, adaptations in job structure and changes in management style and behavior of staff in the workplace. The following examples illustrate such accommodations:
1 Allowing the employee to call a support person, such as a family member, friend or therapist, if the need arises during the day (this may be particularly important to rehabilitated former drug addicts or persons with alcoholism);
2 Identifying potential stressors and having a strategy or action plan in advance to anticipate problems rather than reacting to them;
3 Allowing employees to listen to soothing music in their workstations, perhaps on headphones, or to use white noise tranquil background sounds;
4 Allowing the employee a respite from phone calls or other demanding or stressful duties to work on less demanding projects during the day;
5 Negotiating part-time or flexible hours, allowing the employee to make up lost work time and allowing more frequent breaks;
6 Providing an applicant additional time for a test or administering the test in a quiet area;
7 Modifying work areas (for example, installing partitions) to minimize or eliminate distractions or for privacy;
8 Guaranteeing easy access to a supportive and understanding supervisor and allowing and encouraging open communication with managers and supervisors;
9 Facilitating access to substance abuse recovery support groups and one-to-one counseling;
10 Providing monitoring and crisis intervention;
11 Making attendance at company social events voluntary, as mandatory attendance may be more stressful;
12 Educating company staff about the ADA and providing sensitivity training;
13 Arranging for Employee Assistance Plan (EAP) staff or other qualified trainers to lead workshops for coworkers and supervisors to educate them about mental disabilities and dispel myths, stereotypes and stigmas (this may also benefit staff who have family members or friends with mental illness; remember, however, that confidentiality requirements prevent any disclosure of any specific individual’s medical information);
14 Modifying leave policies to allow for additional unpaid time off for medical treatments, rehabilitation services, occupational therapy and other supports, including recuperation time;
15 Allowing additional training and time to learn and adjust to new responsibilities when there are changes at work;
16 Providing health insurance coverage that does not exclude mental health conditions;
17 Providing positive feedback;
18 Monitoring the effectiveness of the accommodations and making adjustments as needed.
WHAT IS NOT REQUIRED AS AN ACCOMMODATION?
Sometimes employers wish to monitor the taking of medication by persons with mental disabilities. Some employers have told the EEOC that individuals are “fine as long as they take their medication.” While it is true that many mental conditions are controllable with medication, no medications are completely without risks or side effects. People with mental disabilities may choose to stop taking medications because of side effects, because they do not believe the benefits justify the risks or because they no longer believe they need them. In these situations the employer should focus not on whether the employee is taking medications, but on whether he or she is able to meet standards for job performance and conduct. If workplace conduct is jobrelated for the position in question and consistent with business necessity, the employer may discipline an employee for improper conduct even if the infractions resulted from a disability. The employer may notify a close friend or family member if changes are observed related to a person’s medications if this action was mutually agreed upon as a reasonable accommodation.
An employer does not have to change the supervisor of an employee as an accommodation. Bossectomy is not a form of reasonable accommodation, although changes in the method of supervision may be. Examples of these changes include more clearly identifying goals and priorities, both short-term and long-term; providing more positive feedback on a regular basis; giving assignments in increments rather than all at once; and communicating with the individual in his or her preferred manner (verbally, written, email, etc.).
An employer never has to tolerate violence or threats of violence in the workplace. An employer can refuse to hire a person based on his or her history of threats or acts of violence if the employer can show that the individual poses a direct threat based on the most current medical knowledge and objective evidence. The specific behavior must be identified, and an assessment of the likelihood and imminence of future violence provided.
It is a mistake, however, to assume that people with mental disabilities are more prone to violence than the general population. The perception that those who have anger management issues or sociopathy leading to violence are also mentally ill is an incorrect stereotype. Unpleasant and maladaptive personality traits are not mental disabilities, and major psychiatric disabilities such as major depression and anxiety disorders do not increase the risk of workplace violence.
Education of both individuals with psychiatric disabilities and employers about their rights and responsibilities under the ADA is crucial for creating equal opportunity in the workplace based on knowledge, skills and abilities. More information is available from the EEOC reports Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, Reasonable Accommodation and Undue Hardship under the ADA, and Disability -Related Inquiries and Medical Examinations of Employees under the ADA, all available from the EEOC website. More work is required to dispel myths about psychiatric disabilities and to educate everyone about how the ADA applies to psychiatric disabilities; only then will all Americans be guaranteed the freedom to compete equally in the workplace.
by Cynthia Stankiewicz
Equal Employment Opportunity Commission eeoc.gov
Job Accommodation Network