Issues in Accommodating Mental Disabled Under the ADA

Marifrances Bolger
February 15, 2006 — 2,593 views  
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A top-performing employee is diagnosed with depression and now says her medication makes it impossible for her to get to work on time; must an employer change her work schedule? A job applicant who volunteers that he is intellectually disabled states he can perform his job, but only with a job coach; is that a reasonable accommodation? Are you prepared to answer these questions – and more?

The Americans with Disabilities Act requires employers to provide a reasonable accommodation to applicants or employees with mental or physical disabilities who are qualified to perform the essential functions of a job with or without a reasonable accommodation. For over a decade, employers have devised creative accommodations for individuals with disabilities of all types in workplaces around the country.

Often, however, accommodating mentally disabled applicants or employees requires even more flexibility and creativity. This article provides practical advice for employers and some lessons learned from recent court cases and guidance from the Equal Employment Opportunity Commission (“EEOC”).

How should we handle an employee whose performance is deteriorating and whom we suspect may have a mental disability?

In some cases, employees with mental disabilities disclose their conditions and request accommodations to allow them to continue working. Particularly when suffering from mental disabilities, however, individuals may be reluctant to reveal their condition.

An employer may inquire about an employee’s potential mental disability if the inquiry is job-related and consistent with business necessity. According to the EEOC, this means an employer may inquire about possible mental disabilities when the employer has a reasonable belief, based on objective evidence, that an employee’s inability to perform essential job functions is impaired by a medical condition. The EEOC takes the position that an employer must first have some objective evidence that the employee’s deteriorating performance is related to a mental condition -- such as knowledge that the employee suffered from a mental impairment under similar conditions in the past – before making such an inquiry.1

Practically speaking, employers should discuss performance deficiencies with employees under existing performance policies, regardless of the potential cause of the deteriorating performance. Thus, a supervisor can inquire about an employee’s repeatedly forgetting assigned tasks, having difficulty interacting with co-workers, or being late for work. The supervisor cannot, however, ask whether a mental condition has caused these problems, unless the supervisor has some objective evidence to support this supposition.

If we refer someone to our Employee Assistance Program (“EAP”), have we now “perceived” the individual as disabled?

Not necessarily. Courts in a number of jurisdictions have held that referral to an EAP does not establish conclusively that an employer regarded the referred employee as disabled. In most instances, the employer referred an employee to determine if the employee would constitute a direct threat to himself or others, or to determine whether the employee was fit to return to duty.2 The safest course is to permit a satisfactorily performing employee to continue working while he or she participates in a program offered through the EAP.

What should we tell other employees about an accommodation made for a mentally disabled employee?

Keep information on an employee’s medical condition – including any mental disability – private. Maintain such information separate from general personnel files as a confidential medical record. The EEOC recognizes that an employer may disclose an employee’s mental disability to an employee’s supervisor or manager, if necessary to provide a reasonable accommodation. But do not inform co-workers and other employees about an employee’s mental condition or need for a reasonable accommodation. The employer should instead explain that it protects employee privacy and complies with all federal and state laws. Employers can perhaps forestall such questions by including information on the requirements of the ADA in their EEO and anti-harassment training.

Do I have to transfer an employee, even if I don’t have a position available?

No. But, employers must generally consider reassignment to a vacant position when no accommodation is reasonable to enable an employee to perform his or her current job. The new position must be one for which the individual is qualified.

What kinds of accommodations are reasonable?

Employers should assess an employee’s request for an accommodation on a case-by-case basis, evaluating the preferred accommodation and, if warranted, suggesting alternatives. This exchange is the “interactive process” envisioned by the EEOC and expected in any accommodations case. For those with mental disabilities, the employer can consider modified work schedules, time off (both paid and unpaid), room dividers or partitions, minimizing distractions, offering instructions in a variety of formats, modifying workplace policies and the like. Let’s take a look at the two hypotheticals at the beginning of this article:

  • Modification to Work Schedule
Modifications to work schedules, such as permitting an employee to start work later, are often reasonable accommodations to counter the effects of medication taken by employees with mental disabilities. Keep in mind that each situation should be decided on a case-by-case basis: one employer lost the argument that an 8:00 a.m. start time was an essential function of a bank Marketing Manager’s job, when the bank could not articulate a reason for the start time apart from “setting a good example.”3 The bank nonetheless prevailed in the case because the Marketing Manager failed – despite multiple opportunities – to explain the reason for her repeated tardiness. The court held the employee responsible for the “breakdown in the interactive process.”
  • Job Coach
A job coach assists in training an individual with mental disabilities to perform the essential functions of the job. The EEOC takes the position that an employer can be required to provide a temporary job coach as a reasonable accommodation. Some courts have held, however, that an employer is not required to provide a permanent job coach, or to employ an individual whose job functions are actually performed by the job coach.4

Do we have to tolerate misconduct?

No. Most courts – and even the EEOC -- agree that an employer may discipline an employee with a mental disability consistent with an existing conduct rules. Mentally disabled employees can generally be held to the job-related standards that are consistent with business necessity and applicable to all employees, both disabled and non-disabled.5

RealSolutions®

When an employee volunteers that he or she is mentally disabled, or when a permissible inquiry reveals that an employee suffers from a mental disability, employers should proceed with caution, but not fear. In many cases, individuals with mental disabilities can remain a highly effective member of your workforce with minimally invasive accommodations to account for the effects of medication, the need for more explicit instruction, or the lessening of distractions. This preceding article provides just a brief overview of some of the issues to explore in any such case. Competent legal counsel can guide you through the myriad of issues in your particular situation.

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1 EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities (1997) (“EEOC Enforcement Guidance”)
2 Manson v. General Motors Corp., 66 Fed.Appx. 28 (7th Cir. 2003) (referral for psychiatric evaluation not evidence of “regarded as” when effort to determine if direct threat and employee continues to work); Eustace v. South Buffalo Mercy Hosp., 36 Fed.Appx. 673 (2nd Cir. 2002) (requiring employee to submit to non-confidential counseling session due to performance deficiencies insufficient to show employer regarded her as disabled); Brookins v. Indianapolis Power & Light Co., 90 F.Supp.2d 993 (S.D. Ind. 2000) (supervisor’s knowledge that employee was enrolled in EAP insufficient to establish that employer regarded employee as disabled).
3 Conneen v. MBNA America Bank, 334 F.3d 318 (3d Cir. 2003) (noting that 8:00 am start time not an essential function, but affirming summary judgment for employer where employee failed to engage in the interactive process).
4 EEOC v. Dollar General Corp., 252 F. Supp.2d 277 (M.D. N.C. 2003) (stating that assistance of job coach only reasonable for so long as necessary to train employee to perform job functions).
5 See EEOC Enforcement Guidance.

About the Author

Marifrances Bolger uses her experience as an employment law attorney, HR professional and former Air Force intelligence officer to counsel employers in all areas of employee relations. As a Senior Consultant with Employment Practices Solutions, Marifrances conducts investigations into claims of employee misconduct, speaks and writes on a variety of employee relations topics, and assists employers with all manner of human resources issues.

Marifrances represented companies in employment litigation before state and federal courts and administrative agencies in Philadelphia, Delaware and New Jersey while practicing law with the firm of Morgan, Lewis and Bockius in Philadelphia. She graduated magna cum laude from Duke Law School, is a distinguished graduate of the United States Air Force Academy, and holds a graduate degree from Boston University.

Marifrances Bolger

Employment Practices Solutions